author: JACKSON, Presiding Judge:

text:
    2002 UT App 175
    STATE of Utah, Plaintiff and Appellee, v. Dejon Ramon WALDRON, Defendant and Appellant.
    No. 20010552-CA.
    Court of Appeals of Utah.
    May 23, 2002.
    Jerald N. Engstrom and Maurice Richards, Public Defenders Association, Ogden, for Appellant.
    Mark L. Shurtleff, Attorney General, and Kenneth A. Bronston, Assistant Attorney General, Salt Lake City, for Appellee.
    Before JACKSON, Presiding Judge, and ORME, and THORNE, JJ.
   OPINION

JACKSON, Presiding Judge:

¶ 1 Dejon Ramon Waldron appeals his jury convictions of four first degree felonies and two second degree felonies. He challenges the sufficiency of the evidence and argues prosecutorial misconduct. We affirm.

BACKGROUND

¶ 2 “On appeal, we review the record facts in a light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Brown, 948 P.2d 337, 339 (Utah 1997).

¶ 3 On September 23, 2000, William “Binky” Coleman, Jimmy Roy Valdez, and Mark Anthony Jones were at Coleman’s West Ogden home watching television. Jones answered a knock at the door at approximately 10:00 p.m. and saw Linda Dixon. As Jones opened the door to let Dixon in, he turned his head to watch the television and was blind-sided by a blow to the head by an assailant. The assailant pulled a .40 caliber Glock handgun from his dark jacket, pointed it at Jones, and demanded the money Jones owed him. Coleman pulled a wad of cash from his pocket and offered it to the assailant as payment for whatever Jones owed. The assailant took the money without counting it, then pointed the gun at Valdez’s head and demanded money. Valdez refused, stating, “I ain’t giving up my money. You gonna have to shoot me.” Valdez and Waldron engaged in a short struggle, during which the gun discharged once into the ceiling and once into Valdez’s leg. At trial, both Coleman 'and Valdez described the assailant as a big man, and Coleman added that the assailant wore dark clothes and had his hair braided in corn rows. The assailant left Coleman’s house shortly after the shooting.

4 At 10:27 p.m., Officer Daniel Oberg was dispatched to an accident involving a dark green 2000 Pontiac Sunfire that “had gone off the road and hit a tree.” Dixon was the only person in the car when Oberg arrived. However, one of Waldron’s friends, Demar-kee Jimmerson, testified that he had seen Waldron driving the vehicle earlier that evening.

¶ 5 Waldron visited Jimmerson at approximately 10:30 p.m. that night. Jimmerson testified that his house was “a couple of blocks” from the location of the car accident. Waldron entered the house, unannounced, through the back door. Both Jimmerson and his fiancée, Antoinette Ewing, testified that Waldron “said he had just wrecked a car.” Ewing testified that Waldron repeatedly asked if the “cops” were there for him and that Waldron was “hysterical,” “frantic, [and] nervous.” Ewing described Waldron’s hair as braided in corn rows and both she and Jimmerson testified that Waldron left with someone who came to pick him up.

¶ 6 Later, Ewing and Jimmerson went with a friend to the house where Waldron was staying. Ewing testified that Waldron was trying to hide, and that before she, Jimmerson, Waldron, and a driver left together in a white pickup truck, Waldron told her to put a gun in her purse because “they won’t search a girl.” The police stopped the white pickup truck two blocks from the house, and placed all four occupants in custody. The police searched the truck and found the .40 caliber Glock hand gun in Ewing’s purse with eleven of its thirteen rounds remaining, and arrested the four occupants.

¶ 7 At trial, an expert testified that the firing mechanism of a Glock pistol leaves a unique imprint on shell casings, and that one can accurately match shell casings to the gun from which they were fired. The expert concluded, based on the results of his tests, that the casings found in Coleman’s house had “unquestionably” been fired from the gun found in Ewing’s purse.

¶ 8 Also at trial, Jimmerson referred to Waldron as “Waldron,” “Dejon,” “L.J.,” and “Little John” throughout his testimony. Jones testified that he knew Waldron because Waldron lived in an apartment above his sister, and that he knew Waldron as “D.J. [and] Dejon.” Jones read from a statement he had given to the police that referred to “Little John” as the assailant in Coleman’s house. He testified that “Little John lived above my sister’s house in the neighborhood, Dejon.” Further in response to one of Waldron’s cross-examination questions, Jones stated, “I know you[, Waldron,] as being Dejon because you’ve lived ... above my sister. I’ve seen you there. We’ve had dinner together.... I don’t understand why I— I’m being quizzed like this when Little John is Dejon as far as I know. He lived above my sister.”

¶ 9 Later, during the prosecution’s rebuttal closing argument, the prosecutor made the following statement:

And there are a few other problems that I’d like to point out in what [Waldron] says. He says that the only evidence that he was at [Coleman’s house] is from [Jim-merson] and [Ewing] by this chain of evidence with the gun or the inferences with the gun.
The problem is, Mark Anthony Jones, who he relies on heavily to have told us the truth up here[,] even said at the end of his testimony, as his lies started falling apart, that L.J. is Dejon. L.J. is Dejon.
But when he started first cross-examination[,] Mr. Waldron said:
[Waldron:] Have you ever known me as L.J.?
[Jones:] No.
[Waldron]: There’s talk in here about Little John, L.J. doing this offense. You ever known me as that?
[Jones:] No, just Dejon or D.J.
He is- — I guess I can’t say damn — darned by his own companion’s testimony.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Waldron challenges the sufficiency of the evidence presented at trial, claiming that the evidence was not sufficient to identify Waldron as the assailant in Coleman’s house on the night of the incident. Because Wal-dron challenges a factual finding, he first ‘“must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.’ ” State v. Hopkins, 1999 UT 98,¶ 14, 989 P.2d 1065 (citation omitted). We will reverse “ ‘only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he [or she] was convicted.’ ” State v. Brown, 948 P.2d 337, 343 (Utah 1997) (alteration in original) (quoting State v. Petree, 659 P.2d 443, 444 (Utah 1983)).

¶ 11 Waldron next asserts prosecutorial misconduct. “Because defendant did not object to the comments during the trial, we review this issue for plain error.” State v. Kell, 2002 UT 19,¶ 40, 440 Utah Adv. Rep. 20, — P.3d —.

ANALYSIS

¶ 12 Initially, we observe that Waldron’s brief, prepared by attorneys Maurice Richards and Jerald Engstrom, is close to being woefully inadequate under our rules. The citations are fragmental and the legal arguments are incomplete and cryptic. See Utah R.App. P. 24(a)(9) (“The argument shall contain ... citations to authorities, statutes, and parts of the record relied on.”). However, this case involves several serious felony convictions. Accordingly, with the aid of the State’s brief, we give the Defendant the benefit of any doubt and address the claims contained in the brief on their “merits.”

I. Sufficiency of the Evidence

¶ 13 Waldron’s brief first challenges the sufficiency of the evidence presented to the jury, and thus “ ‘must marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.’” State v. Hopkins, 1999 UT 98,- ¶ 14, 989 P.2d 1065 (citation omitted). Wal-dron’s brief “must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial [that] swp-ports the very findings [it] resists.” West Valley City v. Majestic Inv. Co., 818 P.2d 1311,1315 (Utah Ct.App.1991).

¶ 14 Waldron’s brief asserts that “[t]he evidence presented to the jury merely showed that some individual entered the house,” then “hit Mark Anthony Jones on the head with the pistol, took money from William Coleman and shot Jimmy Ray Valdez in the leg.” Waldron’s brief notes that “[n]one of the three individuals who testified identified the defendant as the assailant.” Thus, the brief contends that evidence “was insufficient for the jury to find beyond a reasonable doubt that the defendant was the individual who entered the house ... and committed the crime.” The State argues that Waldron’s attempt to marshal the evidence falls short. We agree.

¶ 15 Through poor and selective citation to the record, Waldron’s brief only points to parts of testimony that do not identify him as the perpetrator. The brief does not address the evidence that supports the verdict nor attempt to “ ‘demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict.’ ” Hopkins, 1999 UT 98 at ¶ 14, 989 P.2d 1065 (citation omitted). This “failure to marshal the evidence ... allows us to affirm the court’s findings on that basis alone.” State v. Widdison, 2001 UT 60,¶ 61, 28 P.3d 1278; see also Utah R.App. P. 24(a)(9).

¶ 16 Even if Waldron’s brief had fulfilled the marshaling duty, “the evidence relied on by the State demonstrates that the ... findings are supported by sufficient evidence.” Id. Waldron’s brief argues that “[i]t required jury speculation to find that the Defendant was the individual who was the assailant in the house.” However, “ ‘[a] jury is entitled to use its own judgment on what evidence to believe and may draw reasonable inferences from that evidence.’” State v. Pearson, 1999 UT App 220,¶ 15, 985 P.2d 919 (alteration in original) (citation omitted). Further, “ ‘as a general rule, in reviewing a jury verdict we assume that the jury believed the evidence supporting the verdict.’ ” State v. Brown, 948 P.2d 337, 343-44 (Utah 1997) (quoting State v. Dunn, 850 P.2d 1201, 1213 (Utah 1993)). Finally, “‘because we owe “broad deference to the fact finder, [our] power to review a jury verdict challenged on grounds of insufficient evidence is limited.” ’ ” State v. Pearson, 1999 UT App 220 at ¶ 15, 985 P.2d 919 (alteration in original) (citations omitted).

¶ 17 After reviewing the record, we do not believe the evidence is so “ ‘inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he [or she] was convicted.’ ” Brown, 948 P.2d at 343 (Utah 1997) (alteration in original) (citation omitted). Testimony showed that the assailant’s physical description and the description of the assailant’s clothing matched Waldron. Testimony also showed that Waldron gave Ewing a Glock handgun when they left Kathy Colunga’s house. Expert testimony concluded “absolutely” that the shell casings found in Coleman’s house were fired from the gun Wal-dron gave to Ewing because the casings matched the unique imprint of that gun. Further, evidence showed that Waldron accompanied Dixon during the day and later was involved in the auto accident. Finally, testimony showed that Waldron exclaimed, “I’m going to jail!” while underneath a pile of clothes in the pickup truck when it was pulled over. Accordingly, we reject Wal-dron’s sufficiency of the evidence argument.

II. Prosecutorial Misconduct

¶ 18 Waldron’s brief next argues for a new trial due to prosecutorial misconduct. “Because [Waldron] did not object to the comments during the trial, we review this issue for plain error.” State v. Kell, 2002 UT 19,¶40, 440 Utah Adv. Rep. 20, — P.3d —. The first requirement of the plain error test is that “an error exist[ ],” State v. Kingston, 2002 UT App 103,¶ 22, 46 P.3d 761, which depends on “whether [the prosecutor’s] remarks ‘eall[ ] to the jurors’ attention matters which they would not be justified in considering in reaching a verdict.’ ” State v. Saunders, 1999 UT 59,¶28, 992 P.2d 951 (citation omitted) (second alteration in original).

¶ 19 Waldron’s brief claims that “[d]uring rebuttal closing argument the prosecutor stated that Mark Anthony Jones identified the Defendant as the assailant.” This assertion is based on words taken out of context. The transcripts of the trial and closing argument reflect that the prosecutor made no comments or inferences that were not supported by testimony given at trial. In his closing rebuttal, the prosecutor quoted from portions of his examination, and Waldron’s cross-examination, of Jones. The prosecutor did not misrepresent Jones’s testimony, as Waldron’s brief irresponsibly contends, and we cannot say his “remarks ‘call[ ] to the jurors’ attention matters which they would not be justified in considering in reaching a verdict.’ ” Id. (citation omitted). Thus, the trial court committed no error, and Wal-dron’s plain error argument fails.

CONCLUSION

¶ 20 We reject Waldron’s challenge to the sufficiency of the evidence. We also reject Waldron’s plain error argument. Accordingly, we affirm.

¶ 21 WE CONCUR: GREGORY K. ORME and WILLIAM A. THORNE JR., Judges.

      . Waldron appeared pro se at trial.


source: Caselaw Access Project

author: GREENWOOD, Judge:

license: Public Domain

text:
    2002 UT App 173
    PREMIER VAN SCHAACK REALTY, INC., a Utah corporation, Plaintiff and Appellant, v. Thomas K. SIEG, an individual, Defendant and Appellee.
    No. 20010031-CA.
    Court of Appeals of Utah.
    May 23, 2002.

      Paul D. Veasy and R. David Grant, Parsons Behle & Latimer, Salt Lake City, for Appellant.
    Dean L. Gray and John F. Gray, Liapis Gray & Stegall, Salt Lake City, for Appellee.
    Before JACKSON, Presiding Judge, and GREENWOOD, and THORNE, JJ.
   OPINION

GREENWOOD, Judge:

¶ 1 Premier Van Schaack Realty, Inc. (Premier) seeks to enforce the brokerage fee payment provided in the listing agreement (the Agreement) it entered into with Thomas K. Sieg (Sieg) regarding the sale of real property located at 273 North East Capital, Salt Lake City, Utah (the Property). Premier appeals the trial court’s grant of summary judgment to Sieg, arguing that: (1) a sale or exchange occurred pursuant to the Agreement; and (2) Sieg was not entitled to attorney fees. We affirm.

BACKGROUND

¶ 2 On February 7, 1997, Sieg entered into the Agreement with Coldwell Banker. Cold-well Banker subsequently assigned the Agreement to Premier. The Agreement provisions relevant to this appeal state:

BROKERAGE FEE. If, during the Listing period, [12 months] [Premier], the Listing Agent, the Owner, another real estate agent, or anyone else locates a party who is ready, willing and able to buy, sell or exchange (collectively referred to as “acquire”) the Property, or any part thereof, at the listing price and terms stated on the attached board/association property data information form, or any other price or terms to which the Owner may agree in writing, the Owner agrees to pay to [Premier] a brokerage fee in the amount of seven percent (7%) of such acquisition price....
ATTORNEYS FEES. Except as provided in section 7, in ease of the employment of an attorney in any matter arising out of this Listing Agreement (including the sale of the Property) the prevailing party shall be entitled to receive from the other party all costs and reasonable attorney’s fees, whether the matter is resolved through court action or otherwise.

¶ 3 In March 1997, Premier’s real estate agent introduced Sieg to Michael Davis, Marion Vaughn, and Jane Johnson (DVJ), who offered to purchase the Property for $1.3 million. Sieg made a counter-offer that DVJ accepted. However, the anticipated sale never closed, and Sieg returned DVJ’s earnest money.

¶ 4 In June 1997, DVJ proposed that they form a limited liability company (LLC) with Sieg. On September 26, 1997, DVJ and Sieg signed an operating agreement (the Operating Agreement), forming the LLC, MJTM. The Operating Agreement provided that Sieg would convey the Property to MJTM and Sieg would receive a 40% interest in MJTM and a preferential return of 9% on future profits. The Operating Agreement also provided that Sieg had a beginning balance of $670,000 in his initial capital contribution account and that MJTM assumed $580,000 of Sieg’s debt. The other members of MJTM agreed not to encumber the Property without Sieg’s approval. The Operating Agreement stated that the agreed value of the Property was $1.3 million. Furthermore, the Operating Agreement provided, “No Member shall be personally hable to any other Member for the return of any part of the Members’ Capital Contributions.” On January 21, 1998, Sieg transferred title to the Property to MJTM by warranty deed.

¶ 5 In January 1998, MJTM borrowed $1.413 million from Zions Bank secured by a lien on the Property. All of the members of MJTM personally guaranteed the loan. With the proceeds from this loan, MJTM paid off a $300,000 loan to Sieg secured by the Property.

¶ 6 When Premier discovered that Sieg had entered into this arrangement with MJTM, it demanded its commission of 7% of $1.3 million. Sieg refused to pay, claiming that his contribution of the Property was an investment and not a sale or exchange; thus Premier filed suit. On cross-motions for summary judgment the trial court ruled in favor of Sieg, holding that the transaction between Sieg and MJTM was not a sale or exchange pursuant to the Agreement because it lacked consideration. Additionally, the trial court awarded attorney fees to Sieg pursuant to the Agreement. This appeal followed.

ISSUES AND STANDARD OF REVIEW

¶ 7 “Summary judgment is appropriate only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. We review a trial court’s grant of summary judgment for correctness, giving no deference to its conclusions of law.” Jones v. ERA Brokers Consol., 2000 UT 61,¶ 8, 6 P.3d 1129. We review the facts of this case in the light most favorable to the non-moving party. See Dixon v. Pro Image, Inc., 1999 UT 89,¶ 12, 987 P.2d 48. Additionally, we review the award of attorney fees for correctness. See Softsolutions, Inc. v. Brigham Young Univ., 2000 UT 46,¶ 12, 1 P.3d 1095. However, we review whether attorney fees are reasonable under an abuse of discretion standard. See id.

ANALYSIS

I. Sale or Exchange

¶ 8 Premier argues that a sale or exchange occurred as defined in the Agreement; thus triggering the 7% commission provision. The Agreement states:

BROKERAGE FEE. If, during the Listing period, [Premier], the Listing Agent, the Owner, another real estate agent, or anyone else locates a party who is ready, willing and able to buy, sell or exchange (collectively referred to as “acquire”) the Property, or any part thereof, at the listing price and terms stated on the attached board/association property data information form, or any other price or terms to which the Owner may agree in writing, the Owner agrees to pay to [Premier] a brokerage fee in the amount of seven percent (7%) of such acquisition price....

Because this court interprets contracts according to their plain meaning, see Dixon v. Pro Image, Inc., 1999 UT 89, ¶ 13, 987 P.2d 48, Premier must show the following to prevail: (1) that there was a party who was ready, willing, and able to buy or exchange the Property; (2) that Sieg agreed to a sale or exchange; and (3) that the sale or exchange occurred during the term of the Agreement. For purposes of this appeal, we assume that the alleged sale or exchange occurred during the term of the Agreement. Indeed, there is no dispute that the transfer to MJTM took place during the term of the Agreement.

¶ 9 Consequently, we are left to decide whether a sale or exchange occurred between Sieg and MJTM triggering the commission provisions of the Agreement. Under Utah law, “sale” has been defined as, “the conveyance of title to the purchaser for a valuable consideration consisting of the purchase price, or the execution and delivery of a valid and enforceable contract of sale whereby some estate in land, legal or equitable, passes to the purchaser.” Lewis v. Dahl, 108 Utah 486, 161 P.2d 362, 365 (1945). While “exchange” has not been judicially defined in Utah, this court will apply its plain meaning when interpreting the Agreement. See Dixon, 1999 UT 89 at ¶ 13, 987 P.2d 48. The plain meaning of “exchange” is, “the act of giving or taking one thing in return for another.” Webster’s Ninth New Collegiate Dictionary 432 (9th ed.1986); see also Black’s Law Dictionary 585 (7th ed.1999). These definitions demonstrate that to have either a sale or an exchange, there must be consideration. Compare Lewis, 161 P.2d at 365; Black’s Law Dictionary 562 (6th ed.1990) with Aquagen Int’l, Inc. v. Calrae Trust, 972 P.2d 411, 413 (Utah 1998) (“Consideration sufficient to support the formation of a contract requires that a performance or a return promise must be bargained for.” (Citation and quotations omitted.)) and Resource Mgmt. Co. v. Weston Ranch & Livestock Co., 706 P.2d 1028, 1036 (Utah 1985) (“Consideration is an act or promise, bargained for and given in exchange for a promise.”).

¶ 10 Premier argues that Sieg received consideration from MJTM in several different ways. First, Sieg received a 40% interest in MJTM in exchange for the Property. Second, Sieg was entitled to a 9% preferential return from MJTM on all future profits. Third, Sieg had a beginning balance of $670,000 in his initial capital contribution account. Finally, MJTM promised to assume $580,000 of Sieg’s debt.

¶ 11 Sieg contends that each of these alleged indicia of consideration fails for various reasons. Sieg argues that the interest in MJTM Premier relies on cannot serve as consideration because Sieg maintained an ownership interest in the Property. Additionally, Sieg argues that the alleged debt relief fails as consideration because Sieg was personally liable for his personal debt plus the debt of MJTM to Zions Bank.

¶ 12 To support his argument, Sieg cites Cooley Investment Co. v. Jones, 780 P.2d 29 (Colo.Ct.App.1989), and Dahdah v. Continent Realty, Inc., 434 So.2d 997 (Fla.Dist.Ct.App.1983) (per curiam), for the proposition that the 40% interest and 9% preferential return on future profits in exchange for the Property cannot be valuable consideration. In both Cooley and Dahdah, the property owner entered into a listing agreement with a realtor to sell his or her property. See Cooley, 780 P.2d at 30; Dahdah, 434 So.2d at 998. In both cases, the owner decided to convey the property to a partnership or joint venture in which the owner was a member in exchange for: (1) an interest in the joint venture; (2) a preferential interest in future profits; and (3) an initial capital contribution account balance that received no interest over time. See Cooley, 780 P.2d at 30-31; Dahdah, 434 So.2d at 998. In each case, the court held that no sale or exchange occurred. Each court reasoned:

Thus, because the defendant retained an ownership interest in the property, there was only a change in the form of ownership, not a transfer of the property to another entity.
Further, the conveyance of the title to the property cannot be considered to be a “sale.” Under the agreement between defendant and [the other partner], defendant received only a credit for a capital contribution of $500,000, which represented the market value of the property. She received no other compensation; there was no unconditional promise on the part of the partnership, or anyone else, to pay her anything; there was no security given to her; and she was not entitled to receive any interest payments on her capital account. Defendant’s only right was to receive a share of future profits, if any.

Cooley, 780 P.2d at 31 (emphasis added) (internal citations omitted).

[A] sale did not occur because the owner retained an ownership interest in the property. Rather than assuming the risk of a seller, the owner assumed the risk of a participant in a joint venture with the potential for losses as well as profits. As such, the owner decided to develop the property herself.
The exclusive right of sale contract did not address the situation where the owner develops the property herself in the form of a joint venture. The exclusive right of sale contract should be construed against the broker as drafter of the document. Consequently, if the broker wanted a commission in the event the owner entered into a joint venture with other parties regarding the property, the broker should have spelled that out in the contract.

Dahdah, 434 So.2d at 998-99 (quoting Miller, Cowherd & Kerver, Inc. v. De Montejo, 406 So.2d 1196 (Fla.Dist.Ct.App.1981)) (emphasis added).

¶ 13 Like the property owners in Cooley and Dahdah, Sieg retained a substantial ownership interest in the Property that caused him to assume the risks of an investor instead of the risks of a seller. By illustration, when a person undertakes the risks of an investor, that person assumes the risk that the value of investment will increase or decrease over time, or that the investment may be completely lost. However, as a general rule, once a person sells property, appreciation, depreciation, or total loss of the property is of no concern since the sale severs the seller from any interest in the property. Sieg still retained a significant ownership interest in the Property, including the potential value of its future sale and the present right to prevent MJTM from encumbering the Property without his permission. See Pride Oil Co. v. Salt Lake County, 13 Utah 2d 183, 370 P.2d 355, 356 (1962) (holding that “[the right to own property] includes the right to sell it”); Ritholz v. City of Salt Lake, 3 Utah 2d 385, 284 P.2d 702, 705 (1955) (“Clearly among the rights attendant upon ownership and enjoyment of property are the rights to exchange, pledge, sell or otherwise dispose of it_”). Moreover, the value of Sieg’s interest in MJTM is directly tied to the value of the Property because the Property is the only asset MJTM owned. Therefore, because Sieg retained such a substantial ownership interest in the Property, the transaction between Sieg and MJTM does not constitute a sale or exchange as contemplated in the Agreement.

¶ 14 Additionally, Premier’s argument that the debt relief is consideration fails because Sieg personally guaranteed the $1,413 million loan that MJTM used to pay $300,000 of Sieg’s debt. Simply stated, MJTM did not actually relieve Sieg of debt, but rather caused him to personally incur nearly three times more debt than he owed on the Property prior to joining MJTM. MJTM had no ability to pay Sieg’s debt itself, without securing a loan secured by the Property, MJTM’s only asset. Therefore, under the facts of this case, the debt relief promised in the Agreement was illusory.

¶ 15 Premier argues that, unlike the partnership and joint venture in Cooley and Dahdah, a limited liability company under Utah, Colorado, and Florida law is a separate legal entity that is able to buy property in its own name. See Utah Code Ann. § 48-2c-104 (Supp.2001); Colo.Rev.Stat. Ann. §§ 7-80-104; 7-80-107 (2001) (stating limited liability companies can own property separate from their owners); Fla. Stat. Ann. § 608.404 (2001) (same). Because a limited liability-company is an entity distinct from its owners, Premier argues that if a seller of property transfers his property to a limited liability company or to a corporation of which he is the sole shareholder, such a transaction would constitute a sale or exchange. See Hagan v. Adams Prop. Assocs., Inc., 253 Va. 217, 482 S.E.2d 805, 807 (1997) (holding that limited liability company can exchange property for debt relief in its own name because it is an entity separate from its members). We believe, however, that focusing on the legal structure of the transferee averts attention from the critical question of whether there was valuable consideration.

¶ 16 Whether a sale or exchange for valuable consideration occurred is a fact-intensive inquiry that requires more than a mere showing that an owner transferred his property to a separate legal entity. In this ease, Sieg’s credit to his capital contribution account and debt assumption roughly approximate the $1.3 million value of the Property. The preferential interest in future profits and the Zions Bank loan reflect the investment nature of the transaction. Where the owner retains essentially the same ownership interest in the property as he had prior to the conveyance, with plans to develop the property by improving it with the possibility of future gains or losses, and can prevent the record owner from encumbering the property without his permission, such a transaction is not a sale or exchange. Therefore, because the facts in this case show Sieg continued to have substantially the same ownership interest in the Property after the deed to MJTM was executed, there was no consideration and a sale or exchange as contemplated in the Agreement did not occur.

II. Attorney Fees

¶ 17 Premier argues that since there was a sale or exchange of the Property, the trial court erred in granting Sieg attorney fees and in not awarding Premier attorney fees and prejudgment interest. The Agreement states:

ATTORNEYS FEES. Except as provided in section 7, in case of the employment of an attorney in any matter arising out of this Listing Agreement (including the sale of the Property) the prevailing party shall be entitled to receive from the other party all costs and reasonable attorney’s fees, whether the matter is resolved through court action or otherwise.

“In interpreting a contract, the intentions of the parties are controlling. If the contract is written and the language employed is not ambiguous, the parties’ intentions are determined from the plain meaning of the language.” Dixon v. Pro Image, Inc., 1999 UT 89, ¶ 13, 987 P.2d 48 (citations and quotations omitted). According to the plain meaning of the contract, the prevailing party is entitled to attorney fees.

¶ 18 However, Premier argues that even if it loses on appeal, this court should still reverse the trial court’s award of attorney fees because the trial court abused its discretion in holding that Sieg’s attorney fees were reasonable because Sieg failed to comply with the requirements of Rule 4-505 of the Utah Code of Judicial Administration. Under rule 4-505(1),

Affidavits in support of an award of attorney fees must be filed with the court and set forth specifically the legal basis for the award, the nature of the work performed by the attorney, the number of hours spent to prosecute the claim to judgment, or the time spent in pursuing the matter to the stage for which attorney fees are claimed, and affirm the reasonableness of the fees for comparable legal services.

Premier argues that the trial court abused its discretion because Sieg failed to state: (1) the legal basis for attorney fees; (2) the number of hours spent; and (3) the nature of the work performed by the attorney. Sieg argues that although his affidavit does not meet all of the requirements of rule 4-505(1), it is adequate because the trial court was sufficiently familiar with the case to make the determination without a precise affidavit. Each requirement is discussed in order below.

¶ 19 First, while Sieg omitted the legal basis for seeking attorney fees from his affidavit, this does not warrant reversal by itself because the parties and the judge knew the legal basis for seeking attorney fees. In Hall v. NACM Intermountain, Inc., 1999 UT 97, 988 P.2d 942, the supreme court held that because both the court and counsel were aware of the legal basis for seeking attorney fees, there was no prejudice from a failure to state a legal basis in the affidavit. See id. at ¶ 21. In this case, the trial court and counsel knew that the Agreement provided the legal basis for attorney fees. Therefore, Sieg’s omission does not warrant reversal.

¶ 20 Second, the affidavit states the number of hours the attorney spent in prosecuting the matter. Sieg details the number of hours his attorney and an associate worked on the case as well as the rate at which each billed. Therefore, Sieg’s counsel complied with the second requirement of rule 4-505(1).

¶21 Finally, Premier argues that Sieg failed to explain the nature of the services his attorney rendered. Under Utah law, the party claiming attorney fees is required to provide the trial court with sufficient evidence to allow a determination of reasonableness. See Cabrera v. Cottrell, 694 P.2d 622, 624 (Utah 1985). Although the evidence Sieg produced at trial is not ideal, it is sufficient because the parties and the trial court knew that the dispositive issue in this case was whether there was adequate consideration to support a sale or exchange. The record shows that the trial court was very familiar with this issue and the quality of the work Sieg’s counsel provided. Therefore, under the facts of this case and the discretion accorded to the trial court, the evidence presented was sufficient to affirm the award of attorney fees.

CONCLUSION

¶ 22 In sum, the transfer of the Property from Sieg to MJTM was not supported by consideration so as to constitute a sale or exchange. Because no sale or exchange occurred, Sieg owes no commission under the Agreement. Since Sieg has prevailed below and on appeal, he was correctly awarded attorney fees and is entitled to fees incurred on appeal. Accordingly, we affirm the trial court’s decision on both issues and remand to the trial court to determine the amount of reasonable attorney fees Sieg is entitled to as a result of this appeal.

¶ 23 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and WILLIAM A. THORNE JR., Judge.

      . Premier also argues that this court should find consideration because the other members of MJTM promised not to encumber the Property without Sieg’s approval. However, "because [Premier] did not properly raise [this] issue[ ] in the trial court ... and because [it] argued [this issue] for the first time in [its] reply brief, we decline to review [the issue].” Coleman v. Stevens, 2000 UT 98, ¶ 9, 17 P.3d 1122; see also Utah R.App. P. 24(c) ("Reply briefs shall be limited to answering any new matter set forth in the opposing brief.”).

      . Each of the cases in support of both Sieg’s and Premier’s argument do not consider the initial capital account balance as consideration unless it received interest payments. See Cooley Inv. Co. v. Jones, 780 P.2d 29, 31 (Colo.Ct.App.1989); Dahdah v. Continent Realty, Inc., 434 So.2d 997, 998 (Fla.Dist.Ct.App.1983); Hagan v. Adams Prop. Assocs., Inc., 253 Va. 217, 482 S.E.2d 805, 807 (1997). Since no interest was credited to Sieg’s initial capital account, the account is not consideration.

      . We note that both Colorado and Florida have not decided any cases under their limited liability company statutes.

      . Premier also argues that it is entitled to prejudgment interest. However, because we affirm the trial court’s ruling that no sale or exchange occurred, the prejudgment interest claim also fails.


author: THORNE, Judge. ORME, Judge

text:
    2002 UT App 190
    STATE of Utah, Appellee, v. Angie BRAKE, Appellant.
    No. 20010204-CA.
    Court of Appeals of Utah.
    May 31, 2002.

      Margaret P. Lindsay, Aldrich Nelson Weight & Esplín, Provo, for Appellant.
    Mark L. Shurtleff, Attorney General, and Kenneth A. Bronston, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, ORME, and THORNE.
   OPINION

THORNE, Judge.

¶ 1 Appellant Angie Brake (Brake) appeals from a conviction for Attempted Possession of a Controlled Substance, a class A misdemeanor, in violation of Utah Code Ann. § 58-37 — 8(2)(a)(i) (Supp.1999). We affirm.

BACKGROUND

¶ 2 On January 29, 2000, at approximately 11:45 p.m., Utah County Deputy Sheriff Neil Castleberry (Castleberry) observed two vehicles stopped in a small pullout on the side of the road west of the Geneva Steel plant. Castleberry pulled up behind the vehicles to inquire whether the occupants of either vehicle needed assistance. Because he was merely inquiring whether anyone needed assistance, Castleberry did not have his emergency lights on when he approached the vehicles. Castleberry, however, was aware that the vehicles were stopped in an area “known for frequent criminal activity.”

¶ 3 Upon exiting his vehicle, Castleberry approached one of the two vehicles, a green Nissan, which he believed had the engine running. Castleberry observed a young woman in the driver’s seat. He asked the woman to roll down the window, which she did, and then he asked for her driver license. The woman told Castleberry that she was fifteen years-old and that she did not have a driver license. The woman also told Castle-berry that she had not been driving the vehicle. Castleberry then inquired about the vehicle’s owner, and the woman told him that the vehicle’s owner was sitting in the backseat.

¶4 Because the vehicle’s windows were fogged, Castleberry was unable to see clearly into the backseat. He was able, however, to see that two persons, a male and a female, were sitting in the backseat. Because his vision was obscured, Castleberry opened the backseat door to speak to the two persons. Brake, who was sitting in the backseat, identified herself as both the vehicle’s owner and the driver. Brake told Castleberry that she and the others, including the individuals in the other vehicle, were from Sanpete County. She also told Castleberry that she had changed seats with the fifteen-year-old when they arrived at their current location.

¶ 5 Castleberry asked Brake for her identification. Brake told Castleberry that her identification was in her purse and pointed to the front passenger seat, where no one was sitting. Because the purse was located “in a dark area over which he h[ad] no control[,]” Castleberry decided, for safety reasons, to retrieve the purse himself. Castleberry walked around to the passenger side of the front seat and opened the vehicle door to retrieve the purse. As Castleberry reached inside the vehicle to remove the purse, he saw, in plain view, a white bindle next to the purse near the vehicle’s console.

¶ 6 Castleberry picked up the purse and asked for its owner. Someone sitting in the Nissan told Castleberry that the purse belonged to “Lilly,” and that she was sitting in the other vehicle. Castleberry took the purse and the bindle over to the other vehicle. He opened the vehicle’s door and asked for Lilly. Castleberry also asked the persons sitting in the vehicle if the purse belonged to Lilly. One of the two persons identified herself as Lilly and told Castleberry that she owned the purse. Lilly, however, denied owning the bindle. Castleberry had Lilly exit the vehicle and continued to question her at his patrol car. He also tested the white powdery substance contained in the bindle, which tested positive for cocaine.

¶ 7 Castleberry proceeded back to the Nissan and asked the three individuals who owned the cocaine. Castleberry received no response from them. Unable to determine who owned the cocaine, Castleberry told Brake that she would be arrested if no one claimed ownership because she owned the vehicle. Brake then admitted that the cocaine belonged to her and that she and the others had used the cocaine throughout the evening. Castleberry arrested Brake and called for backup. A subsequent search of the Nissan uncovered drug paraphernalia.

¶ 8 Brake was bound over on charges of possessing a controlled substance and unlawful possession of drug paraphernalia. Brake subsequently filed a motion to suppress both the cocaine and her incriminating statements. The trial court denied Brake’s Motion as it pertained to the admissibility of the cocaine and granted her Motion pertaining to her incriminating statements.

¶ 9 In denying that portion of Brake’s Motion to Suppress, the trial court concluded that opening the vehicle’s front passenger door to retrieve the purse was justifiable under the officer safety exception to the Fourth Amendment’s warrant requirement. The trial court relied upon the following facts in reaching its decision:

1. [Castleberry] was alone on patrol and had not yet called for backup.
2. It was late at night; it was dark and none of the occupants lived in Utah County.
3. The road is located in a remote area of Utah County and ... Castleberry described it as a “deserted road.”
4. There were two vehicles at the site . with occupants in each (three occupants in the subject vehicle and two occupants in the pickup truck which was parked contiguous).
5. This was an area of frequent criminal activity.
6. [Castleberry’s] vision was severely restricted because of the darkness and the fact that all of the windows were fogged up.
7. The other vehicle was running and ... Castleberry testified he believed that the subject vehicle had the engine on with a fifteen-year-old unlicensed girl 'behind the wheel and two other passengers in the back seat.

¶ 10 As a result of the trial court’s decision, Brake pleaded guilty to attempted possession of a controlled substance. She conditioned her plea on the right to appeal the trial court’s partial denial of her Motion to Suppress. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 11 Brake argues the trial court erred by denying that portion of her Motion to Suppress alleging that by opening the passenger door to obtain the purse, Castle-berry’s actions constituted an impermissible warrantless search. In reviewing a motion to suppress, “[a] trial court’s factual findings are reviewed deferentially under the clearly erroneous standard, and its conclusions of law are reviewed for correctness with some discretion given to the application of the legal standards to the underlying factual findings.” State v. Loya, 2001 UT App 3, ¶ 6, 18 P.3d 1116.

ANALYSIS

¶ 12 Brake argues that Castleberry conducted an impermissible warrantless search when he opened the Nissan’s front passenger door to retrieve the purse, and therefore, violated her Fourth Amendment right against unreasonable searches and seizures. To support her argument, Brake relies upon State v. Schlosser, 774 P.2d 1132 (Utah 1989).

¶ 13 In Schlosser, a Utah Highway Patrol trooper stopped a vehicle for a traffic violation. See id. at 1133. As the vehicle pulled to the side of the road, the trooper observed the defendant, a passenger in the vehicle, “bending forward, acting fidgety, turning to the left and to the right, and turning back to look at the [trooper].” Id. The movement drew the trooper’s attention.

¶ 14 After the vehicle stopped, the driver exited the vehicle, approached the trooper, and presented the trooper his license and registration. See id. at 1133-34. All the while, the trooper noticed that the defendant “continued to move about the cab of the track.” Id. at 1134. As a result of the defendant’s behavior, the trooper concluded that the defendant “was trying to hide something.” Id. The trooper approached the passenger side of the vehicle, tapped on the window, and opened the door. See id. The trooper “scanned the interior of the truck for contraband and saw a bag of marijuana in the passenger door pocket.” Id. The trooper also “smelled marijuana smoke.” Id. The trooper arrested both the defendant and the driver.

¶ 15 The defendant moved to suppress the marijuana. The trial court granted the defendant’s motion and suppressed “all the evidence seized.” Id. The trial court concluded that the trooper “acted on ‘a mere suspicion that the defendant ... was engaged in criminal activity,’ and had no legal basis for the search and seizure.” Id. (citation omitted). The State appealed.

¶ 16 The Utah Supreme Court affirmed the trial court’s ruling. See id. at 1139. The court concluded that the trooper’s opening the vehicle door was a “search.” Id. at 1135. The court also concluded that the search was unlawful. See id. at 1135-36. The court reasoned that

[the trooper’s] testimony established that his opening the car door exceeded the legitimate objectives of a traffic stop. The [trooper’s] “clear initial objective” in opening the car door was to see whether [the defendant] was “hiding something.” However, without probable cause to justify it, that act clearly exceeded the lawful scope of a legitimate government interest.

Id.

¶ 17 Finally, the court explained that the trooper “cited no safety concerns as the basis for his actions; he sought only to investigate the possibility that defendants were engaged in illegal activity.” Id. at 1137. Because of the safety concerns in the present case, we conclude that Schlosser is inapplicable to the present matter.

¶ 18 The facts and the reasoning set forth in New York v. Class, 475 U.S. 106,106 S.Ct. 960, 89 L.Ed.2d 81 (1986), are applicable to the present matter. In Class, the United States Supreme Court held that a minimally intrusive warrantless search was justified in light of the Fourth Amendment protection against unreasonable searches when balanced against concerns for police officer safety. See id. at 117-18, 106 S.Ct. at 967-68.

¶ 19 In Class, police officers stopped the defendant for two traffic violations. See id. at 107-08, 106 S.Ct. at 962. Upon stopping his vehicle, the defendant exited and approached one of the two officers conducting the stop. See id. at 108, 106 S.Ct. at 963. While one of the officers spoke with the defendant, the other officer proceeded to the defendant’s vehicle and opened the door in an effort to locate the VIN number. See id. The officer was unable to locate the VIN number on the doorjamb, and, subsequently, he reached into the vehicle’s interior to remove some papers that obscured the area of the dashboard where the VIN number was also located. See id. Upon doing so, the officer saw a gun protruding from underneath the driver’s seat. See id. The officers arrested the defendant. See id.

¶ 20 The defendant filed a motion to suppress the gun, which the trial court denied. See id. Ultimately, the New York Court of Appeals reversed the trial court, concluding that the officer’s intrusion into the vehicle was a search that was not justified because the facts of the case “ ‘reveal no reason for the officer to suspect other criminal activity [besides the traffic infractions] or to protect his own safety.’ ” Id. at 109, 106 S.Ct. at 963 (quoting State v. Class, 63 N.Y.2d 491, 483 N.Y.S.2d 181, 472 N.E.2d 1009, 1012 (1984)).

¶21 The United States Supreme Court reversed. The Court determined that “the governmental interest in highway safety served by obtaining the VIN is of the first order, and the particular method of obtaining the VIN here was justified by a concern for the officers’ safety.” Id. at 118, 106 S.Ct. at 968. The Court reasoned that “[t]he search was focused in its objective and no more intrusive than necessary to fulfill that objective.” Id.

¶ 22 As a result, the Court held that this search was sufficiently unintrusive to be constitutionally permissible in light of the lack of reasonable expectation of privacy in the VIN and the fact that the officers observed respondent commit two traffic violations. Any other conclusion would expose police officers to potentially grave risks without significantly reducing the intrusiveness of the ultimate conduct — viewing the VIN — which, as we have said, the officers were entitled to do as part of an undoubtedly justified traffic stop.

Id. at 119,106 S.Ct. at 968.

¶23 The Utah Supreme Court has held that a governmental interest exists in “removing unlicensed drivers from the road for public safety reasons.” State v. Harmon, 910 P.2d 1196, 1203 (Utah 1995) (addressing the public safety concerns of individuals driving with a suspended license). Moreover, Utah Code Ann. § 41-8-1(1) (1998) prohibits a person under sixteen years old from operating a motor vehicle. And, Utah Code Ann. § 41-6-165 (1998) makes it a crime for a vehicle’s owner to allow an underage and unlicensed person to operate that vehicle. Having discovered an underage and unlicensed individual at the wheel of a running vehicle, we conclude that it was both justifiable and reasonable for Castleberry to request from Brake, the vehicle’s owner, her driver license “in light of the governmental interest in removing unlicensed drivers from the road for public safety reasons.” Harmon, 910 P.2d at 1203.

¶ 24 Our conclusion that Castleberry was both justified and reasonable in his request to Brake, also leads this court to conclude that the United States Supreme Court’s reasoning in Class, concerning police officer safety, is applicable in this matter. Specifically, in the situation facing Castleberry, he was justified in his decision to retrieve the purse.

¶ 25 Castleberry approached two vehicles, both of which he believed to be running, in a desolate and frequent crime area. After he had encountered the Nissan’s occupants, Castleberry discovered that (1) the individual in the Nissan’s driver’s seat was fifteen years-old and did not possess a driver license; (2) due to the darkness and fogged up windows, he was unable to see clearly into the Nissan’s backseat to identify the passengers sitting in the backseat; (3) the individuals in both vehicles totaled five; and (4) the purse was located in a dark area out of his control.

¶ 26 When Castleberry set out to retrieve the purse, “[t]he search was focused in its objective and no more intrusive than necessary to fulfill that objective.” Class, 475 U.S. at 118, 106 S.Ct. at 968. As in Class, Castle-berry did not “root about the interior of [Brake’s vehicle].” Id. Further, “[Castleber-ry] did not reach into any compartments or open any containers.” Id. Ultimately, Cast-leberry’s “safety [and a legitimate public safety concern] w[ere] served by the [minimal] governmental intrusion.” Id. at 117, 106 S.Ct. at 968. The trial court’s decision to deny Brake’s Motion to Suppress, as it relates to Castleberry’s retrieval of the purse, is therefore affirmed.

¶ 27 I CONCUR: RUSSELL W. BENCH, Judge.

ORME, Judge

(dissenting).

¶ 28 Two facts, omitted from the main opinion, bear mention. First, the officer ostensibly set about to see if the occupants of the lawfully parked vehicles needed assistance even though nothing in the record suggests a trunk or hood was open, jacks and a spare tire were positioned by either vehicle, or emergency flashers were activated. Second, the officer expressly testified that he elected to open the one vehicle’s front door and retrieve the purse so that he could “make sure that there weren’t any weapons.”

¶ 29 Utah law concerning the search of the interior of a vehicle for weapons, in the course of an investigatory stop, is clear. As explained in a series of cases, none of which are cited in the main opinion, an officer may conduct a weapons search only if he “reasonably believes a suspect is dangerous and may obtain immediate control of weapons.” State v. Bradford, 839 P.2d 866, 870 (Utah Ct.App.1992). This regimen also applies to traffic stops, even though they are regarded as potentially dangerous. See id. at 869. Such a search is justified only if “ ‘a reasonably prudent [person] in the circumstances would be warranted in the belief that his safety ... was in danger.’ ” State v. Roybal, 716 P.2d 291, 293 (Utah 1986) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)). And such a belief can originate in the officer’s contemporaneous observations — either of a weapon or of some furtive movements consistent with retrieval of a weapon — or in the inherent nature of the underlying offense. See State v. Chapman, 921 P.2d 446, 454 (Utah 1996).

¶ 30 Thus, in Bradford, a weapons search was permitted not because of a generalized safety concern or because the intrusion was deemed slight, but because the officer noticed the driver pull a black bag toward the front of the car from an area where the

officer earlier observed a rifle. See 839 P.2d at 871. And in State v. Strickling, 844 P.2d 979 (Utah Ct.App.1992), a weapons search was upheld where a vehicle’s occupants were suspected of involvement in a burglary. See id. at 984 (noting “ ‘[i]t is reasonable for an officer to believe that a burglar may be armed with weapons’ ”) (quoting State v. Carter, 707 P.2d 656, 660 (Utah 1985)). Conversely, in reversing this court in Chapman, the Utah Supreme Court held a weapons search was not warranted, even though the suspect was a gang member who had reputedly carried a weapon in the past, where “ ‘[n]othing about the nature of the underlying offense being investigated’ ”■ — i.e., parking on school property after hours— “ ‘prompted a concern for safety ... [and][n]othing defendant did, by way of conduct, attitude, or gesture, suggested the presence of a weapon in the vehicle.’ ” State v. Chapman, 921 P.2d 446, 454 (Utah 1996) (quoting State v. Chapman, 841 P.2d 725, 732 (Utah Ct.App.1992) (Orme, J., dissenting)).

¶ 31 Applying the correct legal doctrine to this case, rather than the jurisprudence which has developed concerning law enforcement’s entitlement to ascertain a vehicle identification number, leads to the opposite result from that reached by the majority. The officer did not see any weapons, nor does the record suggest he observed any furtive movements or other conduct consistent with the retrieval or presence of a weapon. And nothing about a motorist possibly needing assistance, or even underage driving, by its very nature suggests the presence of weapons. It follows that the officer was not entitled to search even part of the interior of the vehicle for weapons while conducting his investigation of possible underage driving, and that all evidence found as a result of that search should have been suppressed.

      . This quote comes from the trial court's Ruling on Motion to Suppress, ¶ 10.

      . Castleberry had questioned Brake before administering her Miranda warning.

      . The defendant also moved to suppress drug paraphernalia and two firearms, which the trooper discovered while searching the vehicle. See id.

      . Utah Code Ann. § 41-6-165 (1998), states "It is unlawful for the owner ... of any vehicle ... knowingly to permit the operation of such vehicle upon a highway in any manner contrary to law.” Id.

      . Contraiy to the dissent's conclusion, Castleber-ry neither requested nor conducted a weapons search of either the vehicle or the purse. Castle-berry merely retrieved the purse from a dark area within the vehicle that was outside of his immediate control and sought to convey the purse to its owner. Castleberry did not search the purse, and therefore, as we stated above, to the extent that Castleberry's action constituted a search it was focused in its objective and no more intrusive than necessary. See New York v. Class, 475 U.S. at 118, 106 S.Ct. at 968. Ultimately, Castleberry's action helped to ensure not only his safety, but also the safety of those in the vehicle.

      . As pointed out in footnote 5 of the main opinion, the officer's purpose — to "make sure that there weren't any weapons” — was not disclosed to the occupants of the vehicle. Contraiy to the claim in that footnote, however, the officer candidly admitted this was his purpose in entering the vehicle and retrieving the purse himself — this is not something I have created from whole cloth. The officer satisfied himself that there were no weapons in the area where he located the purse. It is true he did not search tire purse, but at that point in time he had seen the bindle and the focus of the encounter had therefore dramatically changed. Moreover, the record does not disclose the size, shape, or weight of the purse. It is entirely possible the officer did not search the purse only because its size, shape, and weight were inconsistent with the possibility it contained a firearm.


author: BILLINGS, Associate Presiding Judge:

text:
    2002 UT App 195
    STATE of Utah, Plaintiff and Appellee, v. Michael BUNTING, Defendant and Appellant.
    No. 20010016-CA.
    Court of Appeals of Utah.
    June 6, 2002.

      Edward R. Montgomery, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeffrey T. Colemere, Assistant Attorney General, Salt Lake City, for Appellee.
    Before BILLINGS, Associate P.J., and DAVIS and GREENWOOD, JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

¶ 1 Defendant Michael Bunting appeals from a conditional guilty plea to Child Abuse Homicide, a second degree felony, in violation of Utah Code Ann. § 76-5-208 (Supp. 2000). Defendant maintains the trial court erred in denying his motion to suppress incriminating statements he made during an interview with Salt Lake County detectives. We affirm.

BACKGROUND

¶ 2 In reviewing the denial of Defendant’s motion to suppress, “we recite the facts in a light most favorable to the trial court’s findings.” State v. Tetmyer, 947 P.2d 1157, 1158 (Utah Ct.App.1997). On November 6, 1999, Defendant left his four-year-old son (Son) alone in a bathtub, returning later to find him unconscious. Defendant called 911 and attempted cardiopulmonary resuscitation. Shortly thereafter, paramedics arrived and determined that Son was dead.

¶ 3 Subsequently, a medical examiner performed an autopsy and determined Son’s death was not caused by drowning. The examiner determined Son’s brain was swollen consistent with suffocation.

¶ 4 Based on the medical examiner’s findings and other inconsistencies in the evidence, Salt Lake County detectives expanded their investigation of Son’s death. The detectives interviewed witnesses, compiled and reviewed medical records, and conducted a criminal background check. The background check revealed Defendant had numerous DUI convictions and had been charged with cruelty to animals.

¶ 5 In preparation for an interview of Defendant, the detectives contacted Detective Glen Yarborough who had given an interrogation seminar one of the detectives had attended. Based on Defendant’s background, Detective Yarborough recommended using a confrontational interview approach involving misrepresentations of the evidence the detectives had implicating Defendant and the “false friend” technique.

¶ 6 On January 21, 2000, the detectives interviewed Defendant at the police station for two and a half hours. The detectives videotaped the interview. At the outset, the detectives asked Defendant whether he had consumed any alcohol the morning of the interview. Defendant indicated that he had had a few beers. After determining that Defendant was not intoxicated, the detectives read Defendant his Miranda rights, which he indicated he understood and waived. During the interview, Defendant appeared comfortable and was attentive and responsive. He did not smell of alcohol or slur his speech, or intimate that he misunderstood the detectives’ questions or purpose for the interview.

¶ 7 The detectives informed Defendant that the medical examiner had scientific evidence that Son had not drowned. They then misrepresented that the medical examiner had determined that Son had been murdered. They also told Defendant that the medical examiner and the district attorney were saying that it “was premeditated, first degree murder” and the medical examiner wanted to “hang [him] out to dry.” The detectives stated the district attorney was going to charge Defendant with “first degree homicide” or he could explain “exactly everything that happened that night.” They further told him they did not think he did it on purpose, suggested Son’s death was negligent or reckless, and told him they wanted to show the medical examiner and district attorney that they were wrong.

¶ 8 Defendant replied that the only thing he had not already told the detectives was that he had introduced Freon into Son’s bathwater to make bubbles. The detectives then told Defendant that he was “going down for it,” it would be better if he came forward with the truth, they did not think he did it on purpose, they were “trying to help [him,]” and they had tried to make him look good. Although repeatedly pressed by the detectives, Defendant denied suggestions that he murdered Son, pushed Son under the water, hit or shook Son, lost his temper, or staged the crime scene. Over half way through the interview, in response to specific questions about Freon, Defendant told the detectives that as an air conditioner repairman he knew the dangers of inhaling Freon in a closed environment, including that it robs lungs of oxygen. He also told the detectives that after introducing the Freon into the bathwater, he left Son alone, and when he checked on Son later, he noticed Son looked tired. He further stated he thought the Freon killed Son, and prior to the paramedics’ arrival, he kicked the Freon cannister into Son’s bedroom. Thereafter, the detectives asked Defendant if he wanted a drink and permitted him to make a phone call and take a smoke break.

¶ 9 Following the interview, the medical examiner confirmed that Freon exposure caused Son’s death. On January 27, 2000, Defendant was charged with Child Abuse Homicide. See Utah Code Ann. § 76-5-208 (Supp.2000). The information was later amended to charge Defendant with Murder. See Utah Code Ann. § 76-5-203 (Supp.2000). On June 29, 2000, Defendant filed a motion to suppress the statements he made during the interview as products of coercive interrogation tactics intentionally employed by the detectives to take advantage of his mental and psychological conditions.

¶ 10 During the suppression hearing, Defendant and the State offered expert testimony by psychologists regarding Defendant’s mental and psychological conditions. Both psychologists agreed that Defendant’s I.Q. is slightly below normal. Defendant’s expert opined that Defendant suffered from mild brain damage caused by thronic alcoholism. She further opined that Defendant was particularly vulnerable to the detectives’ interrogation tactics. The State psychologist testified that the tests used by Defendant’s psychologist had been proven to be unreliable and identified errors in her test administration. The State psychologist opined that Defendant suffers from a mixed personality disorder, including narcissistic and antisocial features, but he appeared to be functionally normal during the interview.

¶ 11 After considering all of the evidence and viewing the videotape of the interview, the trial court denied Defendant’s motion to suppress. The court concluded that based on the totality of the circumstances, Defendant’s statements during the interview were voluntary, that neither his understanding nor his ability to exercise free will and make reasonable decisions as to how to respond to the detectives’ questions were overcome by the detectives’ interrogation tactics, alcohol, or any psychological condition. Following the trial court’s denial of his motion to suppress, Defendant conditionally pleaded guilty to Child Abuse Homicide, reserving the right to appeal the denial of his motion.

ISSUE AND STANDARD OF REVIEW

¶ 12 Defendant argues incriminating statements he made during the interview were the involuntary product of coercion, violating his right to due process under the Fourteenth Amendment and right to protection from compelled self-incrimination under the Fifth Amendment of the United States Constitution. “The ultimate determination of voluntariness is a legal question” that we review “for correctness.” State v. Rettenberger, 1999 UT 80, ¶ 10, 984 P.2d 1009. <cWe set aside a [trial] court’s factual findings only if they are clearly erroneous.” Id.

ANALYSIS

¶ 13 Defendant argues the detectives coerced incriminating statements from him by employing interrogation tactics that played upon his vulnerable mental and psychological conditions. Defendant argues the detectives coerced incriminating statements with misrepresentations about the evidence, threats, promises of leniency, and the false friend technique.

¶ 14 The Fifth Amendment “ ‘ “protects individuals from being compelled to give evidence against themselves.” ’ ” State v. Rettenberger, 1999 UT 80,¶ 11, 984 P.2d 1009 (quoting State v. Piansiaksone, 954 P.2d 861, 865 (Utah 1998)) (emphasis and citation omitted). Furthermore, under the Due Process Clause of the Fourteenth Amendment, “ ‘ “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.” ’ ” Id. (quoting Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 519, 93 L.Ed.2d 473 (1986)) (citation omitted). In the face of a challenge to the voluntariness of a statement made during an interrogation, these amendments require “ ‘the prosecution to demonstrate by a preponderance of the evidence that the statement was made voluntarily.’” Id. at ¶45, 984 P.2d 1009 (quoting State v. Allen, 839 P.2d 291, 300 (Utah 1992)). In assessing such a challenge, a trial court “must examine the ‘totality of circumstances to determine whether’ ” a statement was “ ‘ “made freely, voluntarily and without compulsion or inducement of any sort.” ’ ” Id. at ¶14, 984 P.2d 1009 (quoting Withrow v. Williams, 507 U.S. 680, 689, 113 S.Ct. 1745, 1751, 123 L.Ed.2d 407 (1993) (citation omitted)). “‘Evidence sufficient to support a finding that [an incriminating statement] is involuntary must reveal some physical or psychological force or manipulation that is designed to induce the accused to talk when he otherwise would not have done so.’ ” Id. at ¶ 25, 984 P.2d 1009 (quoting State v. Hegelman, 717 P.2d 1348, 1350 (Utah 1986)) (emphasis omitted). There must also “ ‘be a causal relationship between the coercion and the subsequent confession.’ ” Id. at ¶ 18, 984 P.2d 1009 (quoting State v. Mabe, 864 P.2d 890, 893 (Utah 1993)). “In other words, the evidence must show that the coercive tactics ... overcame the defendant’s free will.” State v. Galli, 967 P.2d 930, 936 (Utah 1998).

¶ 15 Factors to consider in making the voluntariness determination include “the duration of the interrogation, the persistence of the officers, police trickery, absence of family and counsel, and threats and promises made to the defendant by the officers.” Rettenberger, 1999 UT 80 at ¶ 14, 984 P.2d 1009. Other factors to consider include “the defendant’s mental health, mental deficiency, emotional instability, education, age, and familiarity with the judicial system.” Id. at ¶ 15, 984 P.2d 1009.

¶ 16 Defendant maintains the detectives made numerous misrepresentations rendering his statements involuntary. “ ‘[A] defendant’s will is not overborne simply because he is led to believe that the government’s knowledge of his guilt is greater than it actually is.’ ” Galli 967 P.2d at 936 (con cluding half-truth that three co-defendants had implicated defendant in robbery, when only one had implicated defendant, was insufficient to overcome defendant’s free will) (citation omitted); see also Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) (concluding misrepresentations in regard to statements co-defendant made “while relevant, [were] insufficient ... to make ... otherwise voluntary confession inadmissible”); Clanton v. Cooper, 129 F.3d 1147, 1158 (10th Cir.1997) (“ ‘[C]ourts have held confessions admissible when they were prompted by such misrepresentations as that the murder victim was still alive, that nonexistent witnesses have been found, that the murder weapon had been uncovered, that the defendant’s prints were found at the crime scene, and that an accomplice had confessed and implicated the defendant.’ ” (Citation omitted)). “However, in certain cases, police misrepresentations may be sufficiently egregious to overcome a defendant’s will so as to render a confession involuntary.” Rettenberger, 1999 UT 80 at If 20, 984 P.2d 1009.

¶ 17 Defendant maintains the following misrepresentations, made at the beginning of the interview, coerced him into making his initial admission about Freon:

Detective Mitchell: ... [T]he hammer is ready to fall, and that’s why we wanted to talk with you, okay?
[Defendant]: Okay.
Detective Mitchell: ... The ME has wrapped up his investigation, okay. He has forensic evidence — or, excuse me—
Sgt. Vaughn: Scientific evidence. ...
Detective Mitchell: Okay. [Son] did not drown.
[Defendant]: Uh-huh.
Detective Mitchell: [Son] was murdered, is what he’s saying, okay. There’s evidence of proof we can show that the scene was altered.... Do you understand what I am saying there?
[Defendant]: Uh-huh.
Sgt. Vaughn: ... The medical examiner is saying [Son] was murdered. That leaves you to be the murderer. If you want to go in front of the judge and a jury, and be seen as a premeditated murderer, and there are no other facts that we need to know about it, I don’t think you want that, do you?
[Defendant]: Huh-uh.
Sgt. Vaughn: ... [W]e’re going to the district attorney.
Now, he can either charge you with first degree homicide, or we can find out from you exactly everything that happened that night- I think it’s more like a manslaughter ... it’s something reckless ... it’s something stupid, or maybe something negligent that happened that caused that death. You’re the one with the answers. You’re the one [who] can bail your ass out. Like I said, the medical examiners want to hang you out to dry right now.
This is your chance....
[Defendant]: The only other thing that was there that night was I had (inaudible) some bubbles in the tub with a jug of Freon ....

(Emphasis added.)

¶ 18 Although the detectives exaggerated the medical examiner’s findings, we conclude the misrepresentations did not overcome Defendant’s will. The detectives truthfully told Defendant about the medical examiner’s finding that Son did not drown. The detectives then misrepresented that the examiner determined Son had been murdered and wanted to hang Defendant out to dry, but that they thought Son’s death was unintentional. In response, Defendant told the detectives that he put Freon in Son’s bathwater to make bubbles. The detectives did not ask Defendant about Freon until he made this initial statement. When asked why he had not told the detectives about the Freon previously, Defendant stated, “[I was] trying not to hang myself. I was hoping it wasn’t that.”

¶ 19 Defendant argues State v. Rettenberger, 1999 UT 80, 984 P.2d 1009, compels us to conclude that the misrepresentations rendered his statements involuntary in the present case. During the interrogation in Ret-tenberger, officers made thirty-six false statements, the overwhelming majority involving complete fabrications about the testimonial and physical evidence against the defendant. See id. at ¶ 21, 984 P.2d 1009. The officers repeatedly misrepresented that they had testimony of numerous eyewitnesses and co-defendants who would implicate the defendant and falsely informed him that he had been the subject of an intensive undercover investigation. See id. Although the officers had no physical evidence linking the defendant to the crime scene, they told him that they had a wealth of physical evidence so linking him. See id. The supreme court concluded that the number and nature of the misrepresentations came close to or exceeded the voluntariness threshold. See id. at ¶ 20, 984 P.2d 1009.

¶ 20 Rettenberger is distinguishable from the present ease. Unlike Rettenberger, where there was a complete lack of evidence linking the defendant to the crime, in the present case, Defendant was the only person at the crime scene other than Son. Additionally, although the medical examiner’s report did not establish the cause of son’s death, it did establish that Son did not drown and raised questions about Defendant’s initial story and involvement in Son’s death.

¶21 Defendant further argues the detectives coerced incriminating statements from him by telling him that he was going to be charged with “premeditated, first degree murder,” then suggesting “how to avoid the murder charge.” “[A]n interrogation may be ‘impermissibly coercive because [it] carried a threat of greater [charge or] punishment or a promise for lesser [charge or] punishment depending on whether [a defendant] confessed.’ ” Rettenberger, 1999 UT 80 at ¶ 29, 984 P.2d 1009 (quoting State v. Strain, 779 P.2d 221, 226 (Utah 1989)) (second and fifth alterations in original).

¶ 22 Defendant argues the following statements of the detectives coerced him into making incriminating statements:

[T]he hammer is ready to fall....
What they’re saying is they think it was premeditated, first degree murder. [We] don’t think that’s the case.
[W]e want to find out what happened so we can present that, and show them that they’re wrong....
[The district attorney] can either charge you with first degree homicide, or we can find out from you exactly everything that happened that night.... [We] think it’s more like a manslaughter ... it’s something reckless ... it’s something stupid, or maybe something negligent that happened to cause that death.... You’re the one [who] can bail your ass out.
This is your chance....
And you’re going down for it, that’s not the question here.
[There are] different degrees of murder, that’s what we’re telling you.

The State responds that the detectives did not explicitly threaten Defendant or promise him leniency but “merely presented [Defendant with the possibility of being charged with first degree murder” and suggested that a lower charge could be sought if he cooperated.

¶23 In Rettenberger, the supreme court recognized that even strong suggestions that a defendant might not face a particular charge or punishment if he confessed “standing alone, may not ... overcome [a defendant’s] will” but may “constitute evidence that, when considered in light of the totality of the circumstances, strongly weighs against the conclusion that the confession was voluntary.” Rettenberger, 1999 UT 80 at ¶ 32, 984 P.2d 1009. In Rettenberger, the officers made repeated references to the defendant being charged with capital murder, its lethal consequences, and the possibility of lesser charges being brought if the defendant cooperated. See id. at ¶ 29, 984 P.2d 1009. The officers “strongly suggested” several times that the defendant would not face the death penalty if he confessed. See id. They further suggested the murder was unintentional thirty-nine times and the legal significance of the defendant’s intent was made explicit. See id. at ¶ 31, 984 P.2d 1009.

¶ 24 Similar to the officers in Retten-berger, the detectives in the present case told Defendant that he was going to be charged with “premeditated, first degree murder” and stated that they did not believe Son’s death was intentional or implied that he could avoid a premeditated murder charge if he offered an' unintentional, negligent or reckless explanation for Son’s death. However, unlike the officers in Rettenberger, the detectives in the present case did not make significant references to capital murder and its lethal consequences. Furthermore, unlike the defendant in Rettenberger, Defendant did not parrot the facts supplied by the detectives to avoid a charge, see id. at ¶ 40, 984 P.2d 1009, but provided his own version of events. Thus, we conclude that Defendant’s free will was not overcome by any threats or any suggestions of leniency.

¶25 Defendant also argues the detectives coerced incriminating statements with the false friend technique. In employing this technique, officials “represent[ ] to [a defendant] that they [are] his friends and that they [are] acting in his best interest.” Id. at ¶ 24, 984 P.2d 1009. Standing alone, this technique is not “sufficiently coercive to produce an involuntary confession,” but may be significant “in relation to other tactics and factors.” Id. at ¶ 28, 984 P.2d 1009.

¶26 Although at the beginning of the interview, the detectives suggested that they would act on Defendant’s behalf in going to the district attorney, the detectives did not explicitly tell Defendant that they were trying to help him and were trying to make him look good until after he made his admission about introducing Freon into Son’s bathwater. Further, throughout the interview, Defendant did not merely accept the “false claims” against him. See id. In fact, he refused to parrot any suggestions that he murdered Son, pushed Son under the water, hit or shook Son, lost his temper, or staged the crime scene. Moreover, the trial court found that Defendant’s psychological condition did not impair his ability to respond to the detectives’ interrogation tactics. Thus, we conclude Defendant was not susceptible to the false friend technique, unlike the defendant in Rettenberger. See id. at ¶ 26, 984 P.2d 1009.

¶ 27 Defendant additionally argues the detectives intentionally played upon his vulnerable mental and psychological conditions to induce incriminating statements. “[A] confession may be suppressed in circumstances in which a police officer knows of a suspect’s mental illness or deficiencies at the time of the interrogation and effectively exploits those weaknesses to obtain a confession.” Id. at ¶ 18, 984 P.2d 1009 (emphasis added).

¶28 Defendant focuses on the fact that the detectives developed a psychological profile of him and then used interrogation tactics based on that profile. Psychological profiling and interrogation based on that profiling are not fatal to an interrogation. Rather, the focus is on whether the interrogation was coercive. Furthermore, Defendant does not specifically challenge the trial court’s conclusion that his psychological condition did not affect his ability to respond independently or appropriately to the detectives’ questions. Nor does he in any way challenge the trial court’s findings underlying its conclusion. The trial court specifically noted that nothing in the videotape suggested that Defendant was intoxicated or that his psychological condition was such that he was unable to respond appropriately or independently even when pressed by the detectives. Thus, we conclude the detectives’ tactics did not exploit any known mental or psychological condition of Defendant.

CONCLUSION

¶ 29 In sum, we agree with the trial court’s conclusion that under the totality of the circumstances, neither Defendant’s understanding nor his ability to exercise free will and make reasonable decisions as to how to respond to the detectives’ questions were overcome by the detectives’ tactics, Defendant’s alcoholism, or any psychological condition, individually or combined. Thus, we affirm.

¶30 WE CONCUR: James Z. Davis and Pamela T. Greenwood, Judges.

      . Specifically the officers
      told or suggested to him that they found fingerprints at the crime scene; that the crime lab had confirmed were a "positive match” to his; they had ballistic test results implicating him; they had blood samples implicating him; they had a bloody shoe-print from the crime scene that matched his; they had found blood on his shoe; they had unspecified "physical evidence” that linked him to the crime; they had evidence that his car was at the crime scene; they had "blood splatter" evidence connecting him to the crime; they had found fingerprints of "everyone involved” at the crime scene; they had records of phone conversations incriminating him; they had knowledge of the gun used, implicating him; they had incriminating hand prints, palm prints, fingerprints, and shoe prints at the scene of the crime; they had found blood in his car; and they had more evidence implicating [him] than the police had in the O.J. Simpson case.

        State v. Rettenberger, 1999 UT 80, 1121, 984 P.2d 1009.