author: DAVIS, Judge:

text:
    2003 UT App 39
    STATE of Utah, Appellee, v. Edwin PIRELA, Appellant.
    No. 20010886-CA.
    Court of Appeals of Utah.
    Feb. 13, 2003.

      R. Paul Kawai and Margaret P. Lindsay, Aldrich Nelson Weight & Esplín, Provo, for Appellant.
    Mark L. Shurtleff, Attorney Generals Office, and Karen A. Klucznik, Assistant Attorney General, Salt Lake City, for Appellee.

      Before BILLINGS, Associate Presiding Judge, DAVIS, and GREENWOOD, JJ.
   OPINION

DAVIS, Judge:

¶ 1 Defendant Edwin Pirela appeals from convictions of Aggravated Sexual Assault, a first degree felony, in violation of Utah Code Ann. § 76-5-405 (1999), and Aggravated Assault, a third degree felony, in violation of Utah Code Ann. § 76-5-103 (1999). Defendant also appeals the imposition of a sentence enhancement under Utah Code Ann. § 76-3-407 (1999). We affirm.

BACKGROUND

¶ 2 Defendant’s convictions stem from a March 11, 2000 episode. Around 10:00 p.m., the victim went to Defendant’s motel room. According to the victim’s trial testimony, she became afraid when Defendant insisted she would have her “clothes off by the end of the night.” When the victim tried to leave, Defendant repeatedly hit her in the face and demanded that she take her pants off. The victim screamed and attempted to escape. Because the claw lock had been applied to the room door, it opened just a few inches. The victim screamed through the opening and Defendant began choking her until she struggled to breathe. Defendant threatened that if she made any more sounds “he would put [her] out of [her] misery.” Defendant pushed the victim onto the bed, the victim removed her pants, and Defendant penetrated her twice with his penis and once digitally.

¶ 3 At trial, Defendant presented a different account. According to his testimony, the victim was a prostitute who consented to have sex with him. After they had sex, the victim demanded drugs from him. When Defendant refused to buy the victim drugs, she started screaming and swung at him. He grabbed her by the collar and possibly hit her as he attempted to throw her out of the room. Defendant claimed that the victim fabricated the assaults because he did not give her drugs.

¶ 4 At the same time the episode in Defendant’s room was occurring, other motel guests heard screaming. One of the guests saw an apparently distressed woman with a fat lip crying and hurrying down the hall. Proceeding up the hall, the guest saw Defendant, who appeared slightly distressed.

¶ 5 After barricading herself in her motel room, the victim called her boyfriend, who was at work, and told him she had been raped. After pushing through the barricaded door, the boyfriend discovered the victim in a fetal position, beat-up and bloody. When police officers arrived, the victim was huddled in a corner, crying, with visible physical injuries.

¶ 6 Shortly thereafter, the victim was taken to a hospital where a forensic nurse took physical evidence from her. The nurse noted the victim’s injuries were inflicted within the last six to eight hours. Among the injuries were neck and eye bruising consistent with choking. She also had vaginal trauma consistent with forced penetration. Subsequently, the forensic nurse collected physical evidence from Defendant. The evidence collected from the victim and Defendant revealed “seminal fluid only from [Defendant].”

¶ 7 Defendant was charged with two counts of aggravated sexual assault and one count of aggravated assault. At trial, Defendant sought to introduce three witnesses’ testimony indicating that the victim engaged in prostitution for drugs and that she would become upset and make threats when she was not given drugs. Defendant also sought to introduce testimony about an October 2000 incident involving a sex-for-drugs transaction following which the victim allegedly made “accusations” about “individuals” in a motel room. The trial court concluded the proffered testimony was inadmissible.

¶8 After the jury returned a verdict convicting Defendant of one count each of aggravated assault and aggravated sexual assault, the State introduced certified court documents indicating that an Edwin Pirela, with a birth date of October 25, 1954, had been convicted of a felony sexual offense in Illinois. After receiving the evidence, the jury found beyond a reasonable doubt that Defendant previously had been convicted of a felony sexual offense. At sentencing, the trial court ordered a sentencing enhancement to run consecutively to the sentences on the aggravated sexual assault and aggravated assault convictions.

¶ 9 Prior to sentencing, Defendant filed a motion to arrest judgment, arguing that the evidence was insufficient to support the enhancement. Defendant also filed a motion for new trial, arguing that the trial court erred by excluding the testimony regarding the October 2000 incident. However, unlike the testimony proffered at trial, the testimony trial counsel maintained the witnesses would offer omitted any direct reference to prostitution and indicated the victim allegedly threatened to call the police because “individuals” in a motel room had taken advantage of her sexually.

¶ 10 After sentencing, Defendant filed a renewed motion for a new trial, claiming the witnesses would have testified the victim “had fabricated claims of sexual misconduct on another occasion against” the individuals in the motel room.

¶ 11 The trial court denied Defendant’s motions for a new trial and to arrest judgment. Defendant appeals both denials.

ISSUES AND STANDARDS OF REVIEW

¶ 12 Defendant first argues the trial court erred by excluding evidence that “indicated that the alleged victim had made similar prior false allegations of sexual assault,” and by not granting a new trial based on this evidence. “[T]he decision to grant or deny a new trial is a matter of discretion with the trial court and will not be reversed absent a clear abuse of that discretion.” State v. Williams, 712 P.2d 220, 222 (Utah 1985). “Any legal determinations made by the trial court as a basis for its denial of a new trial motion are reviewed for correctness.” State v. Loose, 2000 UT 11,¶ 8, 994 P.2d 1237.

¶ 13 Defendant next argues that his trial counsel was ineffective by failing to assert at trial that the testimony regarding the false allegations of sexual assault was admissible under rules 412 and 404(b) of the Utah Rules of Evidence. “When an ineffective assistance of counsel claim ‘is raised for the first time on appeal[,] ... it presents a question of law.’ ” State v. Holbert, 2002 UT App 426,¶ 26, 61 P.3d 291 (citation omitted).

¶ 14 Finally, Defendant argues the trial court erred in denying his motion to arrest judgment on the enhancement. We will not reverse the denial of a motion to arrest judgment unless “ ‘the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable ... that reasonable minds must have entertained a reasonable doubt.’ ” State v. Hoffhine, 2001 UT 4,¶ 20, 20 P.3d 265 (citation omitted).

ANALYSIS

I. Testimony Indicating the Victim Threatened to Fabricate Sexual Assaults

¶ 15 Defendant argues the trial court erred by excluding testimony indicating “that the alleged victim had made similar prior false allegations of sexual assault,” and by not granting a new trial based on this testimony. Defendant maintains that rule 412 does not bar such testimony and it is admissible under rule 404.

¶ 16 At trial, the court excluded testimony of three witnesses concerning the victim’s reputation as a prostitute and her behavior during sex-for-drugs transactions. Rule 412 precludes evidence of a victim’s “ ‘sexual predisposition,’” and evidence that “ ‘may have a sexual connotation for the fact finder.’ ” State v. Martin, 2002 UT 34,¶¶ 40, 42, 44 P.3d 805 (quoting Utah R. Evid. 412 & advisory committee’s note) (emphasis omitted); see also Williams v. Indiana, 681 N.E.2d 195, 202 (Ind.1997) (noting a party cannot circumvent the requirements of rule 412(b) by relying on rule 404(b) in concluding trial court properly excluded evidence of victim’s drug history and sexual conduct).

¶ 17 In the present case, the trial proffer was loaded with testimony as to the victim’s sexual predisposition, and at trial, counsel did not offer to limit the testimony nor “aver[] that he [would] not introduce ‘any evidence concerning [the victim’s] sexual behavior or predisposition.’”' Martin, 2002 UT 34 at ¶ 42, 44 P.3d 805. Moreover, the proffer did not indicate that the witnesses would testify that the victim had threatened to fabricate an allegation of sexual misconduct, nor did counsel argue at trial that the same was not barred by rule 412. See Utah R. Evid. 412 advisory committee’s note (“Evidence offered to prove allegedly false prior claims by the victim is not barred by [r]ule 412.”).

¶ 18 We accordingly conclude the trial court did not err in excluding the proffered testimony. To the extent Defendant claims on appeal that the trial court improperly excluded the testimony proffered at trial, his claim fails.

¶ 19 In his motions for a new trial, Defendant argued the excluded testimony regarding the October 2000 incident was not barred by rule 412 and was admissible under rule 404(b). In the motions, the testimony trial counsel claimed the witnesses would offer omitted any direct reference to prostitution. Counsel claimed a witness, Carlos Lopez-Perez (Lopez-Perez), would testify that in October of 2000 he asked the victim “to party.” The victim “indicated ... she would meet [Lopez-Perez] at [a] motel [after] her boyfriend ... left for work.” At the motel, she did cocaine with Lopez-Perez and other individuals. Lopez-Perez left. Sometime later, the victim sought more drugs from Lopez-Perez at his residence. When Lopez-Perez “refused to give [the victim] additional cocaine ... she ... claim[ed] the men in the [motel] room took advantage of her in a sexual manner and she was considering calling the police.” Counsel further claimed Lopez-Perez would testify that after he gave the-victim cocaine, she dropped the issue. Counsel also claimed a second witness, Dawit Baxter (Baxter), would testify that there was no physical contact between himself and the victim or any of the other individuals in the room and the victim. In his renewed motion for a new trial, counsel claimed Lopez-Perez would testify the victim “fabricated claims of sexual misconduct” against Baxter and “other individuals.”

¶20 Under rule 24 of the Utah Rules of Criminal Procedure, the trial court “may ... grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party.” Utah R.Crim. P. 24(a). The trial court denied Defendant’s motions for a new trial, ruling that as “proffered,” the testimony was barred by rule 412 and inadmissable under rule 404(b). The court also denied Defendant’s motions because there would not have been a different outcome in light of the evidence presented at trial.

121 Assuming the witnesses would have testified as trial counsel claimed in his motions for a new trial, and assuming the trial court erred in ruling the testimony regarding the October 2000 incident was inadmissible, we conclude any error did not have a “substantial adverse effect” on Defendant’s rights. Utah R.Crim. P. 24(a); see State v. Jaeger, 1999 UT 1,¶30, 973 P.2d 404 (“[A]n erroneous decision to ... exclude evidence does not constitute reversible error unless the error is harmful.” (quotations and citations omitted)).

¶ 22 Defendant’s convictions were supported by substantial physical evidence, consistent with the timing of the episode, including vaginal trauma consistent with forced penetration, multiple bruises, and injuries consistent with choiring. Furthermore, police officers and other witnesses testified as to the victim’s visible injuries and her distressed demeanor. Motel guests testified that they heard screaming. The victim also displayed an exaggerated startle response during the physical examination.

¶23 Moreover, Defendant testified as to his theory of the case — that the victim exchanged sex for drugs and fabricated the assaults when he would not buy her drugs. He also offered witness testimony that the victim had a reputation for untruthfulness.

¶24 Because substantial record evidence supports Defendant’s convictions, we are not convinced of a “likelihood of a more favorable outcome,” see Jaeger, 1999 UT 1 at ¶ 38, 973 P.2d 404, had the testimony regarding the alleged threat been admitted, or that any error had a “substantial adverse effect” upon Defendant’s rights. See Utah R.Crim. P. 24(a). We accordingly conclude the trial court did not abuse its discretion in denying Defendant’s motions for a new trial.

II. Ineffective Assistance of Counsel

¶ 25 Defendant argues his trial counsel was ineffective because counsel failed to argue at trial that the testimony in regard to the October 2000 incident was not barred by rule 412 and was admissible under rule 404(b). To establish trial counsel was ineffective, Defendant must show: “ ‘(1) that his counsel rendered a deficient performance in some demonstrable manner,’” and (2) that the deficient performance prejudiced his defense in that “ ‘the outcome of the trial would probably have been different but for counsel’s error.’ ” State v. Hunt, 781 P.2d 473, 477 (Utah Ct.App.1989) (citations omitted); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

¶26 Because substantial record evidence supports Defendant’s convictions, and any error in excluding the testimony was harmless, Defendant cannot establish prejudice. Thus, this claim fails.

III. Sentence Enhancement

¶27 Finally, Defendant claims the trial court erred in failing to arrest judgment on the sentence enhancement because the evidence was insufficient for the jury to find beyond a reasonable doubt that Defendant had been previously convicted.

¶ 28 “We will ‘overturn a conviction for insufficient evidence when it is apparent that there is not sufficient competent evidence ... for the fact-finder to find, beyond a reasonable doubt, that the defendant committed the crime.’ ” State v. Boyd, 2001 UT 30,¶ 13,25 P.3d 985 (citation omitted).

¶29 We conclude the evidence was sufficient. First, Defendant’s name is not common. Further, this case does not rest entirely on the name of a person, see State v. Bruno, 69 Utah 444, 256 P. 109, 110-11 (1927); rather, the certified Illinois court documents indicate a birth date of October 25, 1954. The jury could have drawn an inference as to Defendant’s age from his appearance. In addition, Defendant testified in his own defense, and thus had the opportunity to assert that he was not the individual named in the certified Illinois conviction. See State v. Aime, 62 Utah 476, 220 P. 704, 708 (1923), overruled in part on other grounds by State v. Larocco, 794 P.2d 460 (Utah 1990); see also State v. Johnson, 350 S.C. 543, 567 S.E.2d 486, 488 (Ct.App.2002) (determining evidence sufficient to show defendant and individual from certified copies of court records were same person when defendant failed to offer evidence that suggested he was not same person (citing Parke v. Raley, 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992))).

¶ 30 We conclude, under the facts of this ease, “ ‘the evidence, viewed in the light most favorable to the verdict, is [not] so inconclusive or so inherently improbable ... that reasonable minds must have entertained a reasonable doubt.’” State v. Hoffhine, 2001 UT 4,¶20, 20 P.3d 265 (citation omitted). We therefore conclude the trial court did not err by denying Defendant’s motion to arrest judgment.

CONCLUSION

¶ 31 We conclude the trial court did not err by excluding the testimony proffered at trial. Further, because substantial evidence supports Defendant’s assault convictions and he has failed to establish any error or impropriety that had a substantial adverse effect on his rights, the trial court did not abuse its discretion by denying his motions for a new trial. We also conclude sufficient evidence supported the enhancement. Therefore, we affirm.

¶32 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . In general " '[w]e view the facts in the light most favorable to the jury verdict’" and recite them accordingly. State v. Martin, 2002 UT 34,¶ 2 n. 1, 44 P.3d 805 (citation omitted) (alteration in original). However, we recite trial testimony to the extent it is necessary "to fully understand the issues raised on appeal.” Id.

      . Trial counsel proffered that Carlos Lopez-Perez (Lopez-Perez) would testify that on several occasions, the victim had sex with him for drugs and she would demand drugs, become upset, yell, and threaten him. Counsel further proffered that Lopez-Perez would testify that in October of 2000, the victim "agreed to ... exchange sex for drugs at [a] motel; that when the drugs ran out, she ... got upset, began yelling and screaming and making threats and accusations to [him] about things that did happen in the motel room with regard to the individuals there.” Trial counsel also proffered that Dawit Baxter would testify that "there was no physical contact between himself and [the victim] or any of the other individuals in the room.” Trial counsel proffered that a third witness would testify that the victim had a reputation for being a prostitute.

      . Rule 24 of the Utah Rules of Criminal Procedure requires a motion for a new trial to "be accompanied by affidavits or evidence of the essential facts in support of the motion.” Utah R.Crim. P. 24(b); see also Hart v. Salt Lake County Comm’n, 945 P.2d 125, 135 (Utah Ct.App.1997) (affirming trial court's denial of motion for new trial based on failure to file affidavit in accordance with rule 59 of the Utah Rules of Civil Procedure). In the present case, the motions are not accompanied by affidavits or evidence. Rather, the motions are accompanied by trial counsel’s changing assertions as to what the witnesses would have testified. "Although [D]e-fendant claims that the witnesses] would have presented [this testimony in support of| his defense,” Defendant had ample opportunity to offer more limited testimony at trial and the exclusion of the testimony at trial "was not due to any error or impropriety” by the trial court. State v. Gehring, 694 P.2d 599, 601 (Utah 1984).

      . Defendant maintains the trial court erred because rule 412 of the Utah Rules of Evidence does not exclude false prior allegations of rape. See Utah R. Evid. 412 advisory committee's note ("Evidence offered to prove allegedly false prior claims by the victim is not barred by [r]ule 412."). However, trial counsel proffered no evidence of a prior false allegation of rape. Rather, the proposed testimony indicates a subsequent threat, which failed to materialize, to fabricate sexual misconduct.
      Defendant also maintains the testimony regarding the threat is admissible as a bad act under rule 404(b) of the Utah Rules of Evidence. " ‘[I]n deciding whether evidence of other [bad acts] is admissible under rule 404(b), the trial court must determine (1) whether such evidence is being offered for a proper, noncharacter purpose under 404(b), (2) whether such evidence meets the requirements of rule 402, and (3) whether this evidence meets the requirements of rule 403.’ ” State v. Vargas, 2001 UT 5,¶ 33, 20 P.3d 271 (footnote omitted) (first alteration in original). The trial court concluded the testimony regarding the threat was inadmissible to show the victim's motive and intent in going to Defendant’s room, to show a common scheme or plan to obtain drugs, and to attack her credibility. The court did not reach whether the testimony was admissible under rule 403 of the Utah Rules of Evidence. Based on what counsel claimed Lopez-Perez would testify — that the victim subsequently threatened to fabricate sexual misconduct by third parties if Lopez-Perez did not give her drugs — we question the probative value of the evidence in light of the potential for confusing the jury. See Boggs v. Collins, 226 F.3d 728, 744 (6th Cir.2000) (noting rule 404 is "designed to prevent distracting mini-trials on collateral matters”), cert. denied, 532 U.S. 913, 121 S.Ct. 1245, 149 L.Ed.2d 152 (2001). However, because substantial record evidence supports Defendant's convictions, we do not reach whether the trial court’s evidentiary rulings were erroneous.

      . Defendant additionally argues that his trial counsel was ineffective for failing to timely move the court to introduce evidence of prior sexual behavior under rule 412. However, Defendant does not allege "consensual ‘rough’ sex” as an alternative source of the victim’s injuries. State v. Boyd, 2001 UT 30,¶ 43, 25 P.3d 985. Because substantial physical evidence supports Defendant's convictions. Defendant has failed to show prejudice — that the outcome of trial would probably have been different but for trial counsel's errors. See State v. Hunt, 781 P.2d 473, 477 (Utah Ct.App.1989). Thus, this argument also fails.

      . During the hearing on Defendant's motion to arrest judgment, the prosecutor indicated Defendant's birth date was listed as October 25, 1954 on the information. However, the jury instructions repeat the charges, as provided in the information, but omit the birth date. The same birth date is listed on the affidavit of indigency signed by Defendant. It is not clear from the record that the jury considered the information or the affidavit in its deliberations on the enhancement.

      . This is not a case where an accused was "force[d] ... to take the stand in violation of his or her Fifth Amendment right not to take the stand to testify.” State v. Smith, 726 P.2d 1232, 1236 (Utah 1986); see also State v. Palmer, 860 P.2d 339, 343 (Utah Ct.App.1993) (recognizing that when accused refuses to testify at trial, using that silence as direct inference of guilt is improper).


source: Caselaw Access Project

author: BENCH, Judge:

license: Public Domain

text:
    2003 UT App 37
    STATE of Utah, Plaintiff and Appellant, v. Tyler John ZESIGER, Defendant and Appellee.
    No. 20020058-CA.
    Court of Appeals of Utah.
    Feb. 13, 2003.

      Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellant.
    Walter F. Bugden and Tara L. Isaacson, Bugden & Isaacson, LLC, Salt Lake City, for Appellee.
    Before JACKSON, P.J., BILLINGS, Associate Presiding Judge, and BENCH, J.
   OPINION

BENCH, Judge:

¶ 1 This is an interlocutory appeal by the State from an order suppressing evidence seized pursuant to a second search warrant. The trial court concluded that the taint on evidence obtained from an earlier search was not removed by the second warrant, and that the independent source rule “does not apply to violations of the ‘knock and announce’ statute.” We reverse.

BACKGROUND

¶ 2 During the course of an unrelated child pornography investigation, Detective Brad Franke of the Logan City Police Department received a message on his computer inviting him to enter a private File Transfer Protocol site that allowed access to files in another computer. Franke entered the site and downloaded pictures and video clips depicting minors engaged in sexual activity. After further investigation by Detective James Nye of the Utah State University Police Department, the police determined that the files originated from Defendant’s dormitory room, “Snow Hall 306C.” Nye then obtained a knock-and-announce search warrant authorizing the search of Defendant’s dormitory room.

¶ 3 On December 13, 2001, Nye knocked on the front door of apartment 306 and announced, “this is the police department, we have a search warrant.” After a few moments, one of Defendant’s roommates opened the door and invited the officers inside. The front door of the apartment opened into a kitchen and small living room area. Down the hallway were three bedrooms, each of which were shared by two roommates. After determining which room was Defendant’s, Nye opened the bedroom door without knocking. Before entering, Nye asked Defendant who he was and whether the room was his. After confirming Defendant’s identity and occupancy of the room, the officers seized his computer and performed a search of the room. During the search, Defendant acknowledged that he operated the Internet site. The computer was then taken to the Attorney General’s office to compare the contents on the computer with those files previously downloaded by Detective Franke. All of the files previously downloaded were found on Defendant’s computer. Defendant was then charged with ten counts of sexual exploitation of a minor in violation of Utah Code Ann. § 76-5a-3 (1999).

¶4 Defendant filed a motion to suppress the evidence, arguing that the police failed to meet the requirements of the knoek-and-an-nounce warrant. The trial court agreed and suppressed the computer evidence and Defendant’s statements made during the execution of the first search warrant because the police failed to knock and announce their presence at Defendant’s bedroom door.

¶ 5 Following entry of the suppression order, Nye arranged to return the computer to Defendant at his residence. During the interim period, Nye had obtained a second search warrant based solely on the presearch investigation and advised the issuing magistrate of the prior suppression order. Immediately after officers returned the computer to Defendant at his residence, they executed the second search warrant and reseized the computer.

¶ 6 Defendant filed a motion to suppress the evidence seized during the execution of the second warrant. The State argued that the independent source doctrine applied, and therefore, the evidence was admissible and did not have any illegal taint. The trial court disagreed, however, and ruled that the independent source doctrine did not apply in this case because “the illegal taint on the evidence was not removed by the subsequent service of the Second Search Warrant.” The trial court concluded that the independent source doctrine does not apply to violations of the knoek-and-announee statute. We granted the State’s petition for permission to appeal from an interlocutory order. See Utah R.App. P. 5.

ISSUES AND STANDARD OF REVIEW

¶ 7 The State argues that the “trial court should not have suppressed the computer evidence obtained pursuant to the second search warrant.” The State alleges that the trial court erred in rejecting the independent source doctrine by concluding that it did not apply in cases involving violations of the knock-and-announce statute. We review “[t]he factual findings underlying a trial court’s decision to grant or deny a motion to suppress evidence ... under the deferential elearly-erroneous standard, and the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge’s application of the legal standard to the facts.” State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996) (citing State v. Pena, 869 P.2d 932, 935-40 (Utah 1994)).

ANALYSIS

¶ 8 The State argues that “the computer seized pursuant to the second search warrant is admissible under the independent source doctrine.” In Murray v. United States, 487 U.S. 533, 536-40, 108 S.Ct. 2529, 2532-34, 101 L.Ed.2d 472 (1988) the Supreme Court explained and applied the independent source doctrine. The Court upheld a subsequent search and seizure after law enforcement officials had previously entered a warehouse illegally. During the illegal entry, agents saw a large number of wrapped bales that they thought contained marijuana. Following this entry, law enforcement agents sought and obtained a search warrant. See Murray, 487 U.S. at 535-36, 108 S.Ct. at 2532. After obtaining the warrant, agents searched the warehouse and “seized 270 bales of marijuana.” Id. at 536, 108 S.Ct. at 2532. The Supreme Court determined that the independent source doctrine allowed evidence from the subsequent seizure after the illegal entry if the State could demonstrate that “no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.” Id. at 540, 108 S.Ct. at 2534. Accordingly, when the illegal entry and the information gained from it do not affect either the State’s decision to seek a warrant or the magistrate’s decision to grant one, “then the evidence need not be suppressed despite the fact that it was initially unlawfully obtained.” United States v. May, 214 F.3d 900, 906 (7th Cir.2000).

¶ 9 In the present case, the trial court never found that the State failed to meet the requirements of the independent source doctrine. In fact, the defense stipulated that the requirements for the independent source doctrine were met. Defendant’s brief states that the second warrant was “independent of any illegally gained information.” Additionally, at oral argument before this court, Defendant’s counsel stipulated that the requirements for the independent source doctrine found in Murray were met. See Murray, 487 U.S. at 536-40, 108 S.Ct. at 2532-34.

¶ 10 Instead of questioning the validity of the independent source doctrine as to the second warrant, the trial court concluded that the independent source doctrine categorically “does not apply to violations of the ‘knock and announce’ statute.” The court reasoned that to rule otherwise would render the knock-and-announce statute meaningless since illegal entry could simply be remedied by a subsequent entry and the “illegal taint on the evidence was not removed by the subsequent service of the Second Search Warrant.” Before this court, Defendant argues that the independent source doctrine cannot apply where there is a violation of a knock-and-announce warrant. We disagree.

¶ 11 Under the exclusionary rule, “evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.” United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). The exclusionary rule “also prohibits the introduction of derivative evidence ... that is the product of ... or that is otherwise acquired as an indirect result of the unlawful search.” Murray, 487 U.S. at 536-37, 108 S.Ct. at 2533. However, “[a]lmost simultaneously with [the] development of the exclusionary rule, in the first quarter of this century, [the Supreme Court] also announced what has come to be known as the ‘independent source’ doctrine.” Id. at 537, 108 S.Ct. at 2533. This doctrine has been described as

“[t]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred_ When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.”

Id. (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984)) (alterations in original).

¶ 12 “[T]he ‘knock and announce’ rule ... safeguards Fourth Amendment rights, [by] protecting citizens from violations through the misconduct of police officers.” United States v. Marts, 986 F.2d 1216, 1217 (8th Cir.1993). The Utah Supreme Court has stated that

[t]he basic interests that support the knock-and-announce requirement are (1) the protection of an individual’s private activities within his home, (2) the prevention of violence and physical injury to both police and occupants which may result from an unannounced police entry, and (3) the prevention of property damage resulting from forced entry.

State v. Buck, 756 P.2d 700, 701 (Utah 1988). The knock-and-announce protections and interests are limited, however, because “ ‘in some circumstances strict adherence to the Fourth Amendment exclusionary rule imposes greater cost on the legitimate demands of law enforcement than can be justified by the rule’s deterrent purposes.’ ” State v. Arroyo, 796 P.2d 684, 688 (Utah 1990) (quoting Brown v. Illinois, 422 U.S. 590, 608-09, 95 S.Ct. 2254, 2264, 45 L.Ed.2d 416 (1975)).

¶ 13 The trial court cited to no eases that explicitly reject the application of the independent source doctrine to knock-and-announce violations. Defendant relies upon Marts arguing that “other jurisdictions have explicitly rejected the application of the independent source doctrine in knock-and-announce violation cases involving one search.” Defendant’s reliance on this case is misplaced. The Marts court discussed the use of the independent source rule in knock-and-announce violations, responding to the reasoning in a dissent. See 986 F.2d at 1220. However, the issue of whether the independent source rule applied to the case was not specifically decided because “[a] case should not be reversed on appeal on a ground not raised in the district court or in this court.” Id. at 1219.

¶ 14 Furthermore, the independent source doctrine does not render the safeguards of the Fourth Amendment meaningless as the State must demonstrate “no information gained from the illegal entry affected either the law enforcement officers’ decision to seek a warrant or the magistrate’s decision to grant it.” Murray, 487 U.S. at 540, 108 S.Ct. at 2534. These requirements help insure that any illegal taint on evidence wrongfully seized is removed before resei-zure. In the case before us, Defendant’s Fourth Amendment rights were protected by the independent source requirements for obtaining a second search warrant. Any taint on the evidence from the first illegal search was cured by the fact that the State did not use any information gained from the illegal search in its affidavit for the second search warrant.

¶ 15 Next, Defendant argues that even if the independent source doctrine can apply to knoek-and-announce warrant violations, it should not apply to this case because the police actually seized evidence. Defendant attempts to draw a distinction between knoek-and-announce violations involving seized and unseized evidence, stating that “if a knock-and-announce violation occurs, and evidence is not seized, and an independent and lawful search takes place, the doctrine may apply.” Defendant cites to part of the Supreme Court’s opinion in Murray arguing that the “United States Supreme Court has held that application of the doctrine is warranted when the government has made an unlawful entry, but has not seized evidence until a search warrant is obtained.” The Supreme Court, however, does not make this distinction. In Murray, the Supreme Court states:

The First Circuit has discerned a difference between tangible and intangible evidence that has been tainted, in that objects “once seized cannot be cleanly reseized without returning the objects to private control.” It seems to us, however, that reseizure of tangible evidence already seized is no more impossible than rediscovery of intangible evidence already discovered. The independent source doctrine does not rest upon such metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawful seizure is genuinely independent of an earlier, tainted one (which may well be difficult to establish where the seized goods are kept in the police’s possession) there is no reason why the independent source doctrine should not apply.

487 U.S. at 541 — 42,. 108 S.Ct. at 2535 (citation omitted) (emphasis added). Accordingly, we disagree with Defendant’s argument and conclude that the independent source doctrine can apply in situations involving a knock-and-announce violation where evidence was seized.

¶ 16 Finally, Defendant suggests that the use of a different judge by the police in obtaining the second warrant should be dis-positive. We disagree. The police did use a different judge in obtaining the second warrant. However, the police explicitly stated in the affidavit that the evidence obtained in the execution of the first warrant had been suppressed. Any possible duty of candor the police had in obtaining the second warrant was clearly met in this case. See State v. Krukowski, 2002 UT App 433, ¶¶ 12-14, 62 P.3d 452.

CONCLUSION

¶ 17 Based on the foregoing, we conclude the trial court erred by ruling that the independent source doctrine does not apply to knock-and-announce violations. Furthermore, we conclude that the independent source doctrine can apply to violations of the knock-and-announce rule where evidence is seized.

¶ 18 We therefore reverse and remand the case for further proceedings consistent with our opinion.

¶ 19 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JUDITH M. BILLINGS, Associate Presiding Judge.

      . A File Transfer Protocol site (FTP) is a method for giving access to specific files and areas of a computer to another person via the Internet.

      . The State conceded to Defendant's motion, agreeing that the officers' conduct violated the knock-and-announce statute. We analyze this case consistent with that concession. We note, however, that case law from other jurisdictions suggests that the requirements for a knock-and-announce warrant may be met by knocking on the outside door of a dwelling without knocking on the inner door. See People v. Mays, 67 Cal.App.4th 969, 79 Cal.Rptr.2d 519 (Cal.Ct.App.1998) (holding that the officer's compliance with the knock-notice requirements at the front door of the residence was sufficient to enter the defendant's closed bedroom door and, therefore, a second knock-notice was unnecessary); People v. Livermore, 30 Cal.App.3d 1073, 106 Cal.Rptr. 822 (Cal.Ct.App.1973) (holding that, having complied with the knock-and-announce rule before entering a house, officers did not need to knock again before entering a bedroom); People v. Woods, 308 Ill.App.3d 930, 242 Ill.Dec. 507, 721 N.E.2d 786 (2000) (upholding a conviction where police failed to knock on the door of the defendant’s apartment after knocking on the outer door of the apartment building).


author: KITE, Justice.

text:
    2003 WY 33
    R. Jay and Twyla K. OWSLEY, husband and wife, Appellants (Defendants), v. Edward W. and Joyce E. ROBINSON, husband and wife, Appellees (Plaintiffs).
    No. 02-104.
    Supreme Court of Wyoming.
    March 6, 2003.

      William R. Shelledy, Jr. of Scott, Shelledy and Luhm, P.C., Worland, Wyoming, Representing Appellants.
    Kevin D. Huber of Williams, Porter, Day & Neville, P.C., Casper, Wyoming, Representing Appellees.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Appellants R. Jay and Twyla K. Owsley appealed from the district court’s summary judgment voiding their road easement across property owned by Appellees Edward W. and Joyce E. Robinson. The district court concluded the Owsleys’ predecessor-in-interest did not have authority to grant the road easement because the property had already been dedicated to public use as a utility easement. We conclude the district court erred by ruling the property was dedicated to public use and, consequently, reverse.

ISSUES

[¶ 2] The Owsleys state the issue for review as follows:

Whether the owner of a subservient estate to a platted utility easement is prohibited from additionally burdening said estate with a subservient easement which is not inconsistent with the uses permitted by the initial easement?

The Robinsons restate the issues on appeal as follows:

1. Was the [Owsleys’] Notice of Appeal timely filed?
2. Was the District Court correct in ruling as a matter of law that the grant of the easement to the [Owsleys] was void?

FACTS

[¶ 3] Russell and Hazel Sorenson owned real property in Hot Springs County. On September 3, 1987, they filed an official plat with the county clerk. The plat created three separate tracts of land collectively referred to as the Sorenson Tracts and individually labeled as Tracts 1, 2, and 3. The plat also identified three easements: (1) a twenty-foot wide utility easement along the western side of Tract 2 (Easement A); (2) a fifteen-foot wide road and utility easement along the southern side of Tracts 2 and 3 (Easement B); and (3) a thirty-foot wide utility easement along the eastern boundary of Tract 3 (Easement C). The general notes on the plat stated in relevant part: “The utility easements shown hereon are intended for all utilities, including but not limited to, electric, telephone, cable television, water, sewer and gas service fines and facilities.”

[¶ 4] The Sorensons conveyed Tracts 2 and 3 to Theodore Fisher. The deed expressly restated Easements A and B and granted an additional fifteen-foot wide easement for road and utility purposes south of the southern boundary of Tracts 2 and 3 on other property owned by the Sorensons (Easement D). On April 13, 1991, Mr. Fisher sold Tract 3 to the Owsleys. The Ows-ley/Fisher deed restated Easements A, B, and D. The deed also included

a non-exclusive easement 20 feet in width along the West side of Tract 2 of the Sorens[o]n tracts, Town of East Thermop-olis, Hot Springs County, State of Wyoming, for a road and utility easement [(Easement E)], and which is shown on the official plat of Sorens[o]n Tracts, Town of East Thermopofis, filed in the Office of the Hot Springs County Clerk and Ex Officio Register of Deeds, said easement shall be used in connection with the above described real property and be appurtenant to said real property. Grantees, in accepting said easement, agree[] to use the same in a careful and prudent manner.

Easement E was, therefore, granted for the same portion of Tract 2 which was encumbered by Easement A.

[¶ 5] On November 27, 1995, Mr. Fisher conveyed Tract 2 to the Robinsons. The Robinsons objected to the Owsleys’ use of Easement E as a driveway and, accordingly, filed an action seeking a declaratory judgment as to the validity of the easement and to quiet title. The parties filed cross-motions for summary judgment. After a hearing, the district court granted the Robinsons’ summary judgment motion. The district court specifically ruled that, pursuant to Wyo. Stat. Ann. § 34-12-104 (LexisNexis 2001), the recording of a plat is the equivalent of granting the public a fee simple interest in the portions set aside for streets or other public use. The court held, therefore, that the Sorensons did not have authority to grant the Owsleys a road and utility easement over the land which was formerly dedicated as a utility easement on the plat map. The district court ruled Easement E was void and the Robinsons were entitled to a judgment as a matter of law. The Owsleys appealed after the district court denied their motion to reconsider.

DISCUSSION

[¶ 6] The Owsleys contend the district court erroneously granted summary judgment in favor of the Robinsons. In particular, the Owsleys claim the district court’s determination that Easement A was dedicated to public use and the filing of the plat created a fee simple interest in favor of the public on the property covered by Easement A was incorrect. They maintain the grant created a mere easement and it was, therefore, within the rights of the servient property owner to grant another easement on the same property so long as the grant did not interfere with the rights of the dominant estate.

[¶ 7] Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c). The court considers the record in the perspective most favorable to the party opposing the motion and gives that party the benefit of all the favorable inferences which may be fairly drawn from the record. Anderson v. Solvay Minerals, Inc., 3 P.3d 236, 238 (Wyo.2000). A material fact is any fact that, if proved, would have the effect of establishing or refuting an essential element of a claim or defense asserted by a party. Hasvold v. Park County School District Number 6, 2002 WY 65, ¶ 11, 45 P.3d 635, ¶ 11 (Wyo.2002); Century Ready-Mix Company v. Campbell County School District, 816 P.2d 795, 799 (Wyo.1991). We review questions of law de novo. Hasvold, 2002 WY 65, ¶ 11, 45 P.3d 635, ¶ 11.

[¶ 8] The district court ruled that, pursuant to § 34-12-104, the public owned a fee simple interest in the property covered by Easement A. Section 34-12-104 states:

The acknowledgement and recording of such [subdivision] plat, is equivalent to a deed in fee simple of such portion of the premises platted as is on such plat set apart for streets, or other public use, or is thereon dedicated to charitable, religious or educational purposes.

[¶ 9] The plat identified Easement A as a utility easement and stated the utility easements identified on the plat were “intended for all utilities.” In ruling that the public held a fee simple interest in Easement A, the district court necessarily determined the plat “set apart [Easement A] for ... other public use.” Section 34-12-104.

[¶ 10] The dedication of property by filing a plat is known as statutory dedication. Town of Moorcroft v. Lang, 761 P.2d 96, 98 (Wyo.1988), reh’g granted, 779 P.2d 1180 (Wyo.1989). A dedication of property is defined as

the devotion of property to a public use by an unequivocal act of the owner, manifesting an intention that it shall be accepted and used presently or in the future. The intention of the owner to dedicate and acceptance thereof by the public are the essential elements of a complete dedication. Thus it is vital to a dedication of property to public use that it is to be forever and irrevocable after acceptance, and that it be for a public use.

11 Eugene McQuillan, The Law of Municipal Corporations § 33.02 at 636 (3d ed.1983), quoted in Sare v. Sheridan County Board of County Commissioners, 784 P.2d 593, 595 (Wyo.1989); City of Evanston v. Robinson, 702 P.2d 1283, 1286 (Wyo.1985). “ ‘The intention of the owner to set aside lands or property for the use of the public is the foundation and life of every dedication.’” Lang, 761 P.2d at 99 (quoting City of Phoenix v. Landrum & Mills Realty Co., 71 Ariz. 382, 227 P.2d 1011, 1013 (Ariz.1951)). Thus, it is critical to a valid dedication that the owner intends to dedicate the property to public use.

[¶ 11] As is apparent from the plain language of § 34r-12-104, the primary application of the statute is in the dedications of streets, alleys, and other means of access. In fact, until now, every one of our cases applying the statute addressed access issues. See, e.g., Sare, 784 P.2d at 595; Town of Moorcroft v. Lang, 779 P.2d 1180,1184 (Wyo.1989); Lang, 761 P.2d at 99; Robinson, 702 P.2d at 1286; Ruby Drilling Co., Inc. v. Billingsly, 660 P.2d 377, 380 (Wyo.1983). In those eases, the intent to dedicate at least the surface of the property to public use for access was apparent. Id. Other examples of typical dedications for public use include dedications for cemeteries, schools, bridges, and parks. Lang, 761 P.2d at 99.

[¶ 12] We are faced in this case with the question of whether the identification of Easement A on the plat as a utility easement amounts to a dedication of that property to public use. We look first to the plain language of the plat. See generally Sare, 784 P.2d at 594. The plat identifies Easement A as a “utility easement.” The easement is contained within Lot 2 and not set aside as a separate parcel. The plat does not indicate the Sorensons intended to dedicate the area to the use of the general public but indicates they only intended to allow use of the easement for utility purposes. Therefore, the clear and unambiguous language of the plat seems to indicate the Sorensons intended to grant a simple utility easement.

[¶ 13] The Alaska Supreme Court addressed a similar issue in Chugach Electric Association, Inc. v. Calais Company, 410 P.2d 508 (Alaska 1966). That court stated public areas and open spaces, which are often dedicated to public use by plat, are by their nature “subject to being used by the public at large, and not merely by a particular segment of the public.” 410 P.2d at 510. In contrast, utility easements are not “subject to general or common use by the public at large, but only by a limited number of persons or corporations who are engaged in the business of providing public utility services for the residents of [a particular subdivision].” Id. Thus, utility easements are “public” only to the extent they are used by a few residents of the subdivision who are members of the public and are specifically entitled to derive benefits from the utility easement. Id. Residents making use of a utility easement do not use that easement in the same manner as they would use areas typically regarded as public, such as streets, alleys, and parks. Id.

[¶ 14] We conclude, therefore, the utility easements identified in the Sorenson plat were not set apart for public use. Consequently, Easement A is subject to our general rules pertaining to easements. An easement is “ ‘an interest in land which entitles the easement holder to a limited use or enjoyment over another person’s property.’” Hasvold, 2002 WY 65, ¶ 13, 45 P.3d 635, ¶ 13 (quoting Mueller v. Hoblyn, 887 P.2d 500, 504 (Wyo.1994)). Provided the easement does not clearly indicate it is exclusive to the dominant owner, the owner of the servient estate retains the right to use the easement area. Mueller, 887 P.2d at 504; Wilkoske v. Warren, 875 P.2d 1256, 1258 (Wyo.1994). The servient owner’s use of the easement area must not, however, interfere with the dominant use as articulated in the easement language. See Hasvold, 2002 WY 65, ¶ 13, 45 P.3d 635, ¶ 13; Mueller, 887 P.2d at 504. In other words, “[b]oth owners possess rights and each must as far as possible respect the other’s use.” Bard Ranch Company v. Weber, 557 P.2d 722, 730 (Wyo.1976).

[¶ 15] Mr. Fisher granted Easement E to the Owsleys in the 1991 deed. The easement was expressly made appurtenant to Tract 3. Accordingly, Tract 3 was the dominant estate, and Tract 2 was the servient estate. The Robinsons were, therefore, on notice when they purchased Tract 2 that Easement E burdened it. The record does not contain any indication that the Owsleys used the easement in a manner inconsistent with the grant. In other words, there is no evidence that the Owsleys’ use of the easement exceeded the scope of the easement or caused an undue burden upon the Robinsons’ servient estate. As long as the Owsleys use the easement in the manner allowed by the grant in the Fisher/Owsley deed, the Robin-sons may not limit the Owsleys’ use of Easement E.

[¶ 16] Having reached the conclusion that the utility easements in the Soren-son plat were not set aside for public use, we must also conclude the Robinsons could not maintain an action for a judgment declaring the easements were set aside for public use. This is so because, if the easements were set aside for public use, the public authority would hold title to the easements in trust for the public’s benefit and the Robinsons would have no individual possessory interest in the easements and thus no standing to contest the Owsleys’ use of Easement E. Ruby Drilling Co., Inc., 660 P.2d at 381; Morad v. Brown, 549 P.2d 312 (Wyo.1976).

[¶ 17] Reversed.

      . This issue was previously decided in an order denying the Robinsons’ motion to dismiss the appeal and will not, therefore, be revisited here.


author: LEHMAN, Justice.

text:
    2003 WY 35
    Angela Nicole HUGHES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-9.
    Supreme Court of Wyoming.
    March 12, 2003.

      Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender, Representing Appellant. Argument by Ms. Yoder.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General, Representing Appellee. Argument by Mr. Elrod.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] Appellant, Angela Hughes (Hughes), was convicted of one count of possession with the intent to deliver a controlled substance, marihuana. Hughes appeals this conviction asserting in large part that evidence derived from a search of her residence should have been suppressed and that she was not timely and properly advised of her Miranda rights. Finding that the search of Hughes’ residence was proper and that Hughes presents her Miranda argument for the first time on appeal, we affirm.

ISSUES

[¶ 2] Hughes states the issues on appeal as follows:

I. Was the warrantless search of Appellant’s home illegal and the evidence derived from it suppressible?
II. Was Appellant timely and properly warned under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)?
III. Did the trial court err in reserving to itself the factual determination of whether the alleged offense had been committed within a ‘school zone’?
IV. Does loading a pipe with marihuana, while sitting quietly in your own home, constitute ‘delivery’ of a controlled substance within the meaning of W.S. § 35-7-1036(b)(i)(A)?

Although phrased in a slightly different manner, the State essentially offers the same four issues for our consideration.

FACTS

[¶ 3] On April 16, 2001, Campbell County sheriff deputies beginning the midnight shift were asked to look for a male juvenile runaway. The deputies were informed the runaway was probably with George McLaughlin and given the runaway’s possible location. Upon their arrival there, they observed a male exiting a home. When the male noticed the deputies, he turned around and attempted to go back inside. The deputies stopped the male and asked his name to determine if he was the runaway. The male stated that he was Christopher Good (Good) and produced identification confirming that fact. The deputies informed Good of their purpose in coming to the home and asked if he lived there. Good informed the deputies that he did not and told them that Hughes and her roommate were the occupants. The deputies observed that Good smelled of burnt marihuana, his eyes were watery and bloodshot, and his movements were somewhat slow. They then requested to speak to Hughes regarding the runaway.

[¶ 4] Good climbed the steps to the home and, without knocking or otherwise announcing his presence, opened the door. As Good opened the door, the deputies detected marihuana smoke. Deputy Ash (Ash) peered through the open door and noticed a marihuana pipe, scales, and loose-leaf marihuana on the coffee table. Ash then entered the home behind Good without knocking or otherwise obtaining permission. Deputies Theis and Sharpe followed Ash into the home.

[¶ 5] Once inside, the deputies saw Hughes sitting at her kitchen table placing marihuana into a pipe. In addition to Good and Hughes, two other males were in the home. These two were later identified as Bryan Boardman and Chad Swanson. Ash initiated a conversation with Hughes about the runaway as she continued to load her pipe. Hughes indicated that the runaway was not there and that George McLaughlin had moved out of the home a few months prior. Ash then asked Hughes to take him through the home to confirm that the runaway was not present, which she did. At the conclusion of this tour, Ash pointed out that it was obvious that the group had been smoking marihuana. Ash then asked Hughes who else had been doing so. Hughes confirmed that she had been smoking marihuana and also named Good and Swanson. Hughes stated that Boardman had not been smoking with the group.

[¶ 6] Shortly thereafter the deputies arrested Swanson, Good, and Hughes. Hughes asked to go to her room and, once there, volunteered the location of another stash of marihuana. The deputies escorted Hughes to the squad car where she was read her Miranda rights. After Hughes was transported to jail for booking, a search warrant was obtained for her home. The search revealed an additional five individual quarter-ounce bags of marihuana and $268 in cash.

[¶ 7] At the detention center, Hughes met with Investigator Stephen Bagwell (Bag-well). Bagwell reminded Hughes of her right to remain silent and her right to have an attorney present, but Hughes responded that she would like to talk with him. In the course of this conversation, Hughes explained that she had paid $100 for five quarter-ounce bags of marihuana. She also stated that she had loaded her marihuana pipe and was passing it to Good and Swanson.

[¶ 8] Hughes was charged with possession with the intent to deliver committed in violation of Wyo. Stat. Ann. § 35-7-1036(b)(i)(A). Hughes made a motion to suppress all evidence gathered as a result of the search. The district court denied the motion, finding that exigent circumstances permitted the officer’s entry into Hughes’ home.

[¶ 9] Following a two-day trial, a jury convicted Hughes of possession of a controlled substance with the intent to deliver. In a separate sentencing proceeding, the district court found the State had proved beyond a reasonable doubt that the crime took place within 500 feet of a school. Hughes was sentenced to a term of imprisonment not less than two years and not more than four years. This appeal followed.

STANDARD OF REVIEW

[¶ 10] When reviewing a trial court’s ruling on a motion to suppress, we apply the following standard:

We generally do not disturb evidentiary rulings made by a trial court unless the trial court abused its discretion. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). In reviewing a trial court’s ruling on a motion to suppress evidence, we do not interfere with the trial court’s findings of fact unless the findings are clearly erroneous. Geh-nert v. State, 956 P.2d 359, 361 (Wyo.1998). We view the evidence in the light most favorable to the trial court’s determination because the trial court has an opportunity at the evidentiary hearing to assess “the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions.” Id. The constitutionality of a particular search or seizure is, however, a question of law that we review de novo. Id.; Jones v. State, 902 P.2d 686, 690 (Wyo.1995).

Martindale v. State, 2001 WY 52, ¶ 9, 24 P.3d 1138, ¶ 9 (Wyo.2001) (quoting Putnam v. State, 995 P.2d 632, 635 (Wyo.2000)).

DISCUSSION

Warrantless Search

[¶ 11] Hughes challenges the initial search of her home claiming that no justification existed for the warrantless search. She asserts the district court erred by denying her motion to suppress evidence found during this search. Both the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution provide citizens with protection from unreasonable searches and seizures. However, “[n]either the federal nor the state constitution forbids all searches and seizures; rather, they prohibit unreasonable searches and seizures.” Lancaster v. State, 2002 WY 45, ¶ 61, 43 P.3d 80, ¶ 61 (Wyo.2002) (citing Guerra v. State, 897 P.2d 447, 452 (Wyo.1995)). We have stated that under both constitutions, warrantless searches and seizures are per se unreasonable, with a few specifically established exceptions. Morris v. State, 908 P.2d 931, 935 (Wyo.1995). These specific exceptions include:

1) search of an arrested suspect and the area within his control; 2) a search conducted while in hot pursuit of a fleeing suspect; 3) a search and/or seizure to prevent the imminent destruction of evidence; 4) a search and/or seizure of an automobile upon probable cause; 5) a search which results when an object is inadvertently in the plain view of police officers while they are where they have a right to be; 6) a search and/or seizure conducted pursuant to consent; and 7) a search which results from an entry into a dwelling in order to prevent loss of life or property.

Andrews v. State, 2002 WY 28, ¶ 18, 40 P.3d 708, ¶ 18 (Wyo.2002) (quoting Dickeson v. State, 843 P.2d 606, 610 (Wyo.1992)).

[¶ 12] In the instant case, the district court found exigent circumstances existed permitting the deputies to enter Hughes’ home without a warrant. The record indicates that: 1) the deputies were at the home on official business looking for a runaway; 2) the deputies encountered Good, had a discussion with him, and asked to speak with the owner of the home; 3) the deputies noticed that Good smelled of marihuana, had bloodshot watery eyes, and his movements were somewhat slow; 4) Good reentered without knocking or asking permission to enter; 5) when Good opened the door, Ash saw a marihuana pipe, smoke from burnt marihuana, a green leafy substance, and scales; and 6) Ash made these observations from the front steps of the residence, in plain view without entering the residence.

[¶ 13] “The existence of exigent circumstances is dependent upon all of the facts or circumstances viewed in their entirety. If such facts reflect the danger or destruction of valuable evidence, exigent circumstances are present.” Jones v. State, 902 P.2d 686, 691 (Wyo.1995) (quoting Patterson v. State, 691 P.2d 253, 258 (Wyo.1984)). A marihuana pipe, smoke from burnt marihuana, a green leafy substance, and scales were observed in the house. Good had knowledge of the deputies’ arrival. Good was returning to the home and could have informed the occupants of the deputies’ arrival. The evidence could have been easily removed or destroyed once Good reentered the house and before the officers would have had an opportunity to obtain a search warrant. A distinct danger of destruction of this evidence existed. See Patterson v. State, 691 P.2d 253, 258 (Wyo.1984).

[¶ 14] The deputies testified as to the facts surrounding their entry into the home. Based on their reasons and the evidence presented, the district court concluded that exigent circumstances existed for the war-rantless entry. We agree with this decision. The deputies could have reasonably concluded that Good would, if given the chance, inform the other occupants of their presence, allowing the occupants to quickly dispose of the evidence. Therefore, we find that the initial entry into Hughes’ home was legitimate.

[¶ 15] After the deputies were inside the house, the occupants’ drug activity came within the deputies’ plain view. The deputies were authorized to observe Hughes loading a marihuana pipe and see other drug paraphernalia. Both parties’ briefs discuss the issue of “plain view” at length. Perhaps the discussion was due to the portion of the district court’s decision letter stating: “Therefore, there is no reason for the court to suppress the evidence since plain view plus exigent circumstances permitted the officers entry into the residence.” In McDermott v. State, 870 P.2d 339, 343-44 (Wyo.1994), we said:

When an officer lawfully occupies that vantage point from which he can observe possible evidence in plain view, there is no search, reasonable or unreasonable, proscribed by these constitutional inhibitions. In such an instance, the constitutional protections are not infringed because there is no expectation of privacy with respect to those things left where they can be seen by anyone, or everyone. In Horton [v. California ], 496 U.S. 128, at 133-34, 110 S.Ct. [2301] at 2306 [110 L.Ed.2d 112 (1990)], the Supreme Court of the United States articulated the basic rationale:
The right to security in person and property protected by the Fourth Amendment may be invaded in quite different ways by searches and seizures. A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property. The “plain-view” doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures. If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy. A seizure of the article, however, would obviously invade the owner’s possessory interest. If “plain view” justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches.

(Citations omitted.) Ash’s view of the evidence from the front steps would, therefore, not be a search and neither would the plain view of evidence seen after the initial entry into the house. The plain view of the drug paraphernalia combined with the fact that Good was returning to the house, that he could have informed the occupants of the deputies arrival, and that the occupants could have destroyed the evidence, allowed for justifiable entry into the home.

[¶ 16] Hughes would have us believe that the unreasonableness of the search can be shown by the fact that after the deputies had already entered the house and been there for some time, they then obtained a search warrant. We do not believe this to be the case. The deputies entered the home to stop the destruction of evidence and then obtained a search warrant in order to search the rest of the home. The deputies merely placed themselves in the position to maintain the status quo until a warrant could be obtained. The deputies did not search what was beyond plain view until they had a warrant. After the warrant was obtained, they then searched the rest of the home finding more marihuana.

[¶ 17] As with all searches, reasonableness is the ultimate standard. We do not believe the deputies’ conduct in this instance to be unreasonable. Exigent circumstances allowed their warrantless entry into the home. Once there, plain view allowed them to observe the evidence present in the home. As such, there was no error in the district court’s denial of the motion to suppress.

Alleged Miranda Violation

[¶ 18] Hughes claims that she was not timely and properly advised of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). She asserts that this violation resulted in admissions of both verbal and demonstrative evidence that were the result of an unwarned custodial interrogation. Hughes raises this issue for the first time on appeal. A criminal defendant may not raise an issue for the first time on appeal. Meerscheidt v. State, 931 P.2d 220, 225 (Wyo.1997) (citing Kennedy v. State, 890 P.2d 37, 38 (Wyo.1995)).

[¶ 19] Hughes made no mention of a Miranda violation or a custodial interrogation in her motion to suppress or the memorandum of law accompanying that motion. Our review of the motion hearing reveals no argument on these topics either. However, at the motion to suppress hearing the following exchange took place:

[The State]: I guess I have a point of clarification. We might end here if Defense Counsel would tell me on the record, tell me their scope. I read the motion filed. It stresses all evidence gathered or derived as a result of the search of the residence. There is an interview done by Detective Bagwell at sheriffs office after she’s in custody. If they’re contesting that and asking it to be suppressed so that there’s a burden, we will go ahead. If they’re not and their central focus is the entry and that’s it, we don’t need to go ahead on that. And I just for brevity sake, if they’re just worried about the entrance and the things leading up to the actual search warrant, but I can’t tell from because the word derived in here — but I have that witness available and I guess I’m asking on the record what they’re after.
[Defense Counsel]: Regarding the statement, we’re not challenging the voluntariness of the statement. I don’t think the State has any burden in that regard. We were asserting that the State will be (inaudible) of the illegal search, but regarding any proof on the voluntariness or the Miranda warnings, we don’t have any problems with that.

These statements caused the State to forgo the opportunity to develop the evidence necessary to show the facts and circumstances surrounding the statements she now complains were involuntary. We, therefore, decline to address this issue further.

Determination of Location of the Offense

[¶20] Hughes asserts that it was error for the district court to decide the issue of whether her offense took place within 500 feet of a school zone. Our review of the record reveals that Hughes filed a pretrial motion to bifurcate the jury trial on the issues of guilt for the underlying offense and the location of the offense. Hughes further filed a motion in limine to exclude all evidence that her offense took place within 500 feet of a school. Hughes argued that the location of her offense was prejudicial and it would encourage the jury to convict her due to the location of her crime near a school. In making her arguments, Hughes said: “I believe that that issue can be decided by the judge.”

[¶ 21] Partially granting Hughes’ request, the district court prohibited the State from making the location of Hughes’ crime an important issue at trial and, further, decided that the court would determine the location of the offense following a jury verdict as to guilt. Following the jury verdict, the district court found beyond a reasonable doubt that Hughes’ crime did in fact take place within 500 feet of a school zone. At this hearing, Hughes for the first time objected to the district court deciding the location of her crime.

[¶ 22] The principle of invited error governs this issue. Simply stated, this principle stands for the proposition that if a party requests or moves the court to make a ruling which is actually erroneous, and the court does so, that party cannot take advantage of that error on appeal. Blumhagen v. State, 11 P.3d 889, 895 (Wyo.2000) (citing Black’s Law Dictionary 487 (5th ed.1979); Schott v. State, 864 P.2d 38, 39 (Wyo.1993)). In other words, a party does not get to complain on appeal of errors which he himself induced or provoked the court or the opposite party to commit. Id. Arguably, had Hughes not advocated for the district court to decide the issue of the location of her crime, the court would have allowed the jury to decide the issue. We will not allow Hughes to now benefit from any potential error created by the district court’s decision, which came at her insistence.

Sufficiency of the Evidence

[¶23] Although not stated as such, we consider Hughes’ last claim to be a sufficiency of the evidence claim. In reviewing this claim, we utilize our usual standard:

When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. Jennings v. State, 806 P.2d 1299, 1302 (Wyo.1991) (quoting Munson v. State, 770 P.2d 1093, 1095 (Wyo.1989)). We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party’s evidence. Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996). We have consistently held that it is the jury’s responsibility to resolve conflicts in the evidence. Id. (citing Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993)). ‘We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.” Id. (citing Hodges v. State, 904 P.2d 334, 339 (Wyo.1995)).

Williams v. State, 986 P.2d 855, 857 (Wyo.1999).

[¶ 24] Hughes argues that the State provided no evidence of her actual delivery of marihuana. She states: “While these assertions, if admissible, might make out a case of possession, they do not make a ease of ‘delivery.’ Law enforcement did not observe the completed act of delivery.” However, Hughes was tried and convicted of possession with the intent to deliver marihuana. Hughes was not charged or convicted of delivery. Thus, the State had no duty to prove delivery, they only had to prove the elements applicable to possession with the intent to deliver.

[¶ 25] In this instance, the State is required to prove that 1) Hughes possessed, 2) with the intent to deliver, 3) marihuana, a controlled substance. Urrutia v. State, 924 P.2d 965, 967 (Wyo.1996). Hughes conceded at trial that she knowingly possessed marihuana, so the only element at issue is intent to deliver. “The intent-to-deliver element may be proven by a showing that a completed delivery occurred or that the defendant held the specific intent to deliver the controlled substance.” Urrutia, 968 (citing Dorador v. State, 573 P.2d 839, 843 (Wyo.1978); Stuebgen v. State, 548 P.2d 870, 879 (Wyo.1976)).

[¶ 26] Hughes admitted to Detective Bag-well that she lit her marihuana pipe and was passing it to Good and Swanson when the deputies arrived in her trailer. Such admittance shows her specific intent to deliver marihuana. Beyond that, the jury also heard that the marihuana was packaged as it normally would be for sale, and the amount was indicative of distribution. When viewing this evidence in the light most favorable to the State, we find sufficient evidence to convict Hughes of possession with the intent to deliver marihuana.

CONCLUSION

[¶ 27] As indicated above, we find no error in the proceedings. We, therefore, affirm the judgment and sentence of the district court.

      . In Wyoming the formulation of the plain view doctrine contains three requisites for the lawful seizure of property. A former fourth factor, requiring exigent circumstances, has been abandoned. Hixson v. State, 2001 WY 99, ¶ 13 and n. 8, 33 P.3d 154, ¶ 13 and n. 8 (Wyo.2001). In Hixson we explained, "For an analysis of the underpinnings of the plain view doctrine, including the different rights implicated by a search, as opposed to a seizure, see McDermott v. State, 870 P.2d 339, 343-45 (Wyo.1994). Only the exigent circumstances requirement of McDermott has been overruled.” Id., n. 8.