author: CHRISTIANSEN FORSTER, Judge:

text:
    STATE of Utah, Appellee, v. Lourdes RIVERA, Appellant.
    No. 20170386-CA
    Court of Appeals of Utah.
    Filed February 22, 2019
    Nathalie S. Skibine and Richard G. Sorenson, Salt Lake City, Attorneys for Appellant
    Sean D. Reyes and Mark C. Field, Salt Lake City, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Defendant Lourdes Rivera appeals her convictions for carrying a loaded concealed firearm and possession of a controlled substance.

We conclude that the trial court erred when it denied Defendant's request for an innocent-possession jury instruction on the charge of possession of a controlled substance. We therefore reverse that conviction and remand for a new trial on that charge, but affirm in all other respects.

BACKGROUND

¶2 While visiting her boyfriend (Boyfriend) at his apartment, Defendant grew tired of Boyfriend's repeated drug use and the two argued. In an effort to stop his drug use, Defendant took away Boyfriend's drugs, put them in her purse, and then went into the bathroom to shower, locking the door behind her. While she showered, Boyfriend banged on the door and continued to argue, demanding that Defendant return his "stuff."

¶3 When Defendant had finished showering, dressed, and exited the bathroom, Boyfriend, Boyfriend's son, and Boyfriend's brother (Brother) were standing at the end of the hall. Brother pointed a gun in Defendant's direction and Boyfriend told Brother, "Shoot the bitch. Shoot the bitch, motherfucker." Scared, Defendant said she tried to call the police but her phone would not work. The three men ran from the apartment and Defendant saw Boyfriend drive away, though she did not know where the other two went.

¶4 Defendant then whistled toward a nearby apartment to alert her daughter (Daughter) that they needed to leave. While waiting for Daughter, Defendant ran back inside Boyfriend's apartment to retrieve a loaded .22 caliber pistol, putting it in her bra for safety. She put her purse on the bed in the bedroom and left it there. Defendant again stepped out of Boyfriend's apartment. At the same time Daughter came to Defendant and, by that time, numerous police officers had arrived at the apartment complex. Defendant later testified that she did not know exactly why the officers were there, because everything had happened so fast.

¶5 Defendant collected Daughter and walked outside the gate of the courtyard of the apartment complex. Once outside the gate, a police officer approached Defendant and asked if she had seen anyone with a gun or heard anything. Defendant said, "No," and the officer walked away.

¶6 A short time later, however, some children in the apartment complex informed the officers that Defendant was the person with a gun. Officers again approached Defendant. One officer testified that he asked Defendant if she had any weapons on her and Defendant said, "No." But the officer's police report does not mention whether he actually asked Defendant about weapons, and Defendant testified that she did not remember such a question. A second officer asked Defendant if she had a weapon on her and Defendant said that she had a gun in her bra. This officer performed a pat down search revealing Defendant's gun where Defendant said the officer would find it. The officer handcuffed Defendant and gave her a Miranda warning. Defendant nevertheless agreed to speak with the police.

¶7 Although Defendant explained to the police what had happened, she could not remember what she and Boyfriend were fighting about. She also did not mention that she had put Boyfriend's drugs in her purse, which was still inside the apartment. While Defendant spoke to police officers, Defendant's sister (Sister) arrived to pick up Daughter. The police allowed Daughter into Boyfriend's apartment to retrieve a few things. Along with her backpack, Daughter brought out Defendant's purse.

¶8 Sister opened the purse on the ground, looking for a key that Defendant had said was inside her purse. During Sister's search of the purse, police officers saw a suspicious pouch and asked Defendant if she had drugs in her purse. Defendant indicated that she did. The officers' search of the purse revealed what appeared to be drugs and drug paraphernalia, as well as two live .22 rounds and a spent .22 casing. Defendant later testified that the drugs were not hers and that she did not use drugs.

¶9 The State charged Defendant with several offenses and proceeded to trial on the charges of possession of a firearm by a restricted person, possession of a controlled substance, possession of drug paraphernalia, and carrying a concealed dangerous weapon. Defendant asserted as defenses that she was compelled to possess the gun and drugs and that she innocently possessed the drugs and drug paraphernalia. Defendant requested that the trial court instruct the jury on each of these defenses, but the trial court declined to rule on this request until the evidence had been presented at trial.

¶10 At the outset of the trial, the court and the parties discussed whether the officers could testify that they were responding to a report of a "woman with a gun" or whether they should be limited to stating that they were responding to a report of a "person with a gun." Defendant objected to the officers' use of the phrase "woman with a gun," specifically arguing that the use of that phrase would lead the jury to improperly infer that she was the subject of the report. Ultimately, the trial court overruled Defendant's objection and allowed the officers to testify that they had been responding to a report of a "woman with a gun."

¶11 At the close of the State's case, Defendant moved for a directed verdict. Defendant asserted that Utah law regarding concealed weapons allowed her to carry a concealed firearm on "her property," and that the State did not present sufficient evidence at trial to establish that Defendant was not on her property when the police found her with the gun. According to Defendant, the State's own evidence showed that the police encountered her "right outside the apartment complex which is a common area, ... it's her property." The trial court concluded, however, that the evidence established that Defendant was not on her property when the police engaged her because Defendant was outside the gate of the apartment complex.

¶12 At the close of Defendant's case, the court revived the discussion regarding Defendant's two requested defense instructions-innocent possession and compulsion. As to innocent possession of the drugs and paraphernalia, the trial court determined that there was no evidence of any illegal purpose regarding Defendant's possession of the drugs and paraphernalia. The court denied Defendant's request for an innocent-possession instruction, however, because the evidence showed that Defendant had made no attempt to dispose of the drugs or turn them over to the police. On the defense of compulsion to carry a firearm, the court determined that the defense did not apply because any threat to Defendant had dissipated after the three men left the apartment. With respect to the compulsion to possess drugs, the court determined that Boyfriend's use of drugs throughout the night was not an imminent threat. Accordingly, the court denied Defendant's request for a compulsion instruction.

¶13 The jury convicted Defendant of two of the four charges: carrying a loaded, concealed firearm and possession of a controlled substance. Defendant appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 Defendant raises four issues on appeal. First, she argues that the trial court erred when it denied her request for jury instructions on her innocent-possession and compulsion defenses. "We review a [trial] court's refusal to give a requested jury instruction for correctness." State v. Dozah , 2016 UT App 13, ¶ 12, 368 P.3d 863.

¶15 Defendant next contends that the trial court erred when it denied her hearsay objection to the officers' testimony regarding the original report of a woman with a gun. In assessing hearsay rulings, "we review legal questions for correctness, factual questions for clear error, and the final ruling on admissibility for abuse of discretion." State v. McNeil , 2013 UT App 134, ¶ 14, 302 P.3d 844, aff'd , 2016 UT 3, 365 P.3d 699.

¶16 Defendant next argues that the trial court should have granted her motion for a directed verdict on the concealed firearm charge because the State failed to present sufficient evidence to support her conviction. In assessing a directed verdict ruling based upon a claim of insufficiency of the evidence, "we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury." State v. Nielsen , 2014 UT 10, ¶ 30, 326 P.3d 645 (quotation simplified). "We will uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." State v. Montoya , 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation simplified).

¶17 Lastly, Defendant argues that the cumulative effect of the first two errors prejudiced her defense, requiring reversal. "Under the cumulative error doctrine, we will reverse only if the cumulative effect of the several errors undermines our confidence that a fair trial was had." State v. Carvajal , 2018 UT App 12, ¶ 16, 414 P.3d 984 (quotation simplified). Where we conclude that the issues asserted on appeal do not constitute error or that the identified errors are "so minor as to result in no harm," the cumulative error doctrine is inapplicable. State v. Martinez-Castellanos , 2018 UT 46, ¶ 40, 428 P.3d 1038 (quotation simplified); see also State v. Wright , 2013 UT App 142, ¶ 44, 304 P.3d 887. "In other words, the doctrine will only be applied to errors that are 'substantial' enough to accumulate." Martinez-Castellanos , 2018 UT 46, ¶ 40, 428 P.3d 1038.

ANALYSIS

I. Jury Instructions

¶18 Defendant argues that the trial court erred when it denied her request to instruct the jury on two affirmative defenses: innocent possession and compulsion. Defendant first asserts that she was entitled to a compulsion instruction because she was coerced to possess both the gun and the drugs. She also argues that the jury should have been instructed on the innocent-possession defense regarding Defendant's possession of a controlled substance. We agree with Defendant that the trial court should have instructed the jury regarding Defendant's innocent-possession defense with respect to her possession of a controlled substance. We accordingly reverse that conviction. We otherwise affirm.

¶19 When requested by a criminal defendant, a trial court must give an instruction regarding a particular affirmative defense "if evidence has been presented-either by the prosecution or by the defendant-that provides any reasonable basis upon which a jury could conclude that the affirmative defense applies to the defendant." State v. Low , 2008 UT 58, ¶ 25, 192 P.3d 867. "However, a court need not instruct the jury on the requested affirmative defense where the evidence is so slight as to be incapable of raising a reasonable doubt in the jury's mind as to whether the defendant acted in accordance with that affirmative defense." State v. Burke , 2011 UT App 168, ¶ 81, 256 P.3d 1102 (quotation simplified). We first address Defendant's request for an innocent-possession jury instruction then consider her request for the jury to be instructed on compulsion.

A. Innocent-Possession Defense

¶20 Relevant here, it is unlawful in Utah "for any person knowingly and intentionally to possess or use ... a controlled substance." Utah Code Ann. § 58-37-8(2)(a)(i) (LexisNexis Supp. 2018). This statutory provision "implicitly includes the defense of innocent possession." State v. Miller , 2008 UT 61, ¶ 21, 193 P.3d 92. The innocent-possession defense "applies if (1) the controlled substance was attained innocently and held with no illicit or illegal purpose, and (2) the possession of the controlled substance was transitory; that is, that the defendant took adequate measures to rid [herself] of possession of the controlled substance as promptly as reasonably possible." Id. ¶ 22. "[W]hether a defendant took adequate measures to rid [herself] of a controlled substance as promptly as reasonably possible" is a question for the jury. Id. ¶ 23 ; see also United States v. Mason , 233 F.3d 619, 624 (D.C. Cir. 2000) (observing that, where a "defendant's claims of innocent possession, lack of illicit purpose, and transitory possession are plausible, albeit debatable," the issue should be decided by the jury).

¶21 Here, the State charged Defendant with possession of a controlled substance for the drugs found in her purse. Defendant testified that, following Boyfriend's use of drugs throughout the night, she put Boyfriend's drugs in her purse to prevent his continued use. The drugs remained in Defendant's purse and in the apartment until Daughter retrieved the purse approximately two to three hours after Defendant had taken the drugs from Boyfriend. During that time period Defendant showered while Boyfriend banged on the door demanding the drugs back; Brother pointed a gun at Defendant while Boyfriend shouted, "Shoot the bitch"; the men ran away; Defendant tried to get the attention of Daughter in another nearby apartment unit; Defendant obtained a gun from the apartment and returned to collect Daughter outside; and the police questioned and ultimately arrested Defendant on suspicion of possession of a concealed, loaded firearm. It was only subsequent to Defendant's arrest that Daughter retrieved Defendant's purse from the apartment. Defendant then directed Sister to take a key from the purse, at which point the police observed what appeared to be a pouch containing a controlled substance and paraphernalia. Defendant testified, "At the time, ... I spaced that I even grabbed the drugs from [Boyfriend] and put them in my purse" because "so much ... happen[ed] at once."

¶22 The trial court concluded that the evidence presented at trial constituted a threshold showing of the first element of the defense-that "[Defendant] obtained [the drugs] without an illegal purpose to use [them]." The trial court declined to instruct the jury on innocent possession, however, because the court determined that there was no evidence of the second element-that Defendant's possession was transitory. The court determined that no evidence was presented to show any attempt by Defendant to abandon or destroy the drugs, or turn them over to the police despite having opportunities to do so. Although Defendant carries some burden of proof with regard to an affirmative defense, that burden "is quite limited." State v. Sellers , 2011 UT App 38, ¶ 15, 248 P.3d 70 (quotation simplified). Because we discern "a reasonable basis in the evidence for such a defense," Defendant was entitled to an innocent-possession instruction. Id. ; see also Mason , 233 F.3d at 624.

¶23 Defendant testified that she acquired the drugs not for her use, but with the purpose of preventing Boyfriend's use. Neither party presented any other evidence as to Defendant's intent with regard to her possession of the drugs. Given this evidence, the jury could reasonably conclude that Defendant attained the drugs innocently and without an illicit or illegal purpose. The trial court therefore properly concluded that Defendant met the threshold showing that Defendant lacked criminal intent as to possession. See Miller , 2008 UT 61, ¶ 21, 193 P.3d 92.

¶24 The evidence elicited at trial also suggests that Defendant's possession could have qualified as transitory. After Defendant took the drugs from Boyfriend, they sat in her purse while she showered and dressed. A short time later, she placed the purse in the bedroom and it remained there for approximately two to three hours until Defendant was arrested and Daughter retrieved it.

¶25 The trial court observed that no evidence was presented showing that Defendant attempted to abandon or destroy the drugs, or deliver them to the police. Likewise, the parties presented no evidence explicitly identifying Defendant's "intent to dispose of the drugs to prevent harm to others or to turn them over to the proper authorities." See State v. Karren , 2018 UT App 226, ¶ 24, 438 P.3d 18. The record establishes, however, that Boyfriend and Brother threatened Defendant's life shortly after she obtained the drugs. She tried to call the police but her phone was not working. Following this exchange, Defendant focused her attention on getting herself and Daughter out of the apartment complex, even leaving her purse behind. When officers finally discovered what appeared to be drugs in her purse, Defendant immediately acknowledged their presence. Until that point, Defendant explained that "[she] spaced that [she] even grabbed the drugs from [Boyfriend] and put them in [her] purse," citing the rapidly evolving circumstances.

¶26 Under these facts, it is possible that a reasonable jury could find that Defendant's possession was transitory. In other words, a jury could reasonably conclude by inference that Defendant "took adequate measures to rid [herself] of a controlled substance as promptly as reasonably possible ." Miller , 2008 UT 61, ¶ 23, 193 P.3d 92 (emphasis added). Given the bulk of evidence presented at trial showing Defendant's preoccupation with Boyfriend and Brother's threats, the jury, not the court, should be tasked with determining whether Defendant's possession was transitory. See id. ¶ 24. That is, the jury should determine whether under the circumstances Defendant "took adequate measures to rid [herself] of possession of the controlled substance as promptly as reasonably possible." Id. ¶ 22. The trial court erred when it declined to provide the innocent-possession defense instruction, and took this question from the jury.

B. Compulsion Defense

¶27 Defendant also argues that the trial court erred when it declined to instruct the jury on Defendant's compulsion defense for her possession of Boyfriend's drugs and her possession of the loaded, concealed firearm. In particular, she asserts that "Boyfriend's drug use became an imminent threat to both Boyfriend and [Defendant]" and, as a result, she "could not give the drugs back to [Boyfriend]" without putting them both at risk. We are not persuaded and therefore affirm the court's decision not to instruct on this defense.

¶28 Utah Code section 76-2-302 provides a defense to criminal charges when a person "engaged in the proscribed conduct because [she] was coerced to do so by the use or threatened imminent use of unlawful physical force upon [her] ..., which force or threatened force a person of reasonable firmness in [her] situation would not have resisted." Utah Code Ann. § 76-2-302(1) (LexisNexis Supp. 2018). In other words, a defendant is entitled to the compulsion defense instruction when they are forced to violate the law under threat or use of force and they have no reasonable alternative to violating the law. See State v. Ott , 763 P.2d 810, 812 (Utah Ct. App. 1988).

¶29 The evidence presented at trial suggests Defendant experienced a threat of imminent force: Brother threatened to shoot Defendant if she did not return the drugs and drug paraphernalia to Boyfriend. That threat did not compel her to keep the drugs. Thus, the circumstances plainly contradict her argument that she maintained possession of the drugs because she "was coerced to do so." See Utah Code Ann. § 76-2-302(1). Accordingly, we find the argument unpersuasive and affirm the trial court's denial of Defendant's request for a compulsion defense jury instruction regarding her possession of a controlled substance.

¶30 Defendant also contends that the trial court erred when it denied her request for a compulsion instruction regarding her possession of a loaded, concealed firearm. We are likewise unpersuaded. "For a threat to be imminent, it would have to appear that it had been communicated to the defendant that [she] would be subjected to physical force presently." State v. Harding , 635 P.2d 33, 35 (Utah 1981).

¶31 Brother and Boyfriend demanded, at gunpoint, that Defendant return the drugs she had taken from them. In response, Defendant threatened to call the police and may have done so had her phone been working. At that point, the men fled the apartment and Defendant observed Boyfriend drive away. She then left the apartment and had time to whistle to alert Daughter that they needed to leave. Only then did Defendant reenter the apartment and retrieve the gun. Explaining why she picked up the gun, Defendant asserted she feared the men and did not know where they had gone. But fearing for one's safety is not the same as being coerced to engage in illegal activity. In order for Defendant to be entitled to a compulsion instruction, there must have been some evidence presented at trial to show that someone forced her, upon use or imminent threat of physical force, to pick up the gun and possess it. See Utah Code Ann. § 76-2-302(1). Under the circumstances presented here, we agree with the State that during the time Defendant unlawfully possessed a concealed, loaded firearm she was not "coerced to do so by the use or threatened imminent use of unlawful physical force upon [her] ... , which force or threatened force a person of reasonable firmness in [her] situation would not have resisted." Id. Thus, we affirm the trial court's denial of Defendant's request for a compulsion defense jury instruction with respect to her possession of a concealed firearm.

II. Hearsay Objection

¶32 Defendant next contends that the court erred when it declined to exclude the police officers' testimony regarding the original report of a woman with a gun.

¶33 Hearsay is an out-of-court statement "offer[ed] in evidence to prove the truth of the matter asserted in the statement." Utah R. Evid. 801(c)(2) ; see also Kranendonk v. Gregory & Swapp PLLC , 2014 UT App 36, ¶ 23, 320 P.3d 689. Hearsay is generally inadmissible absent an exception under the Utah Rules of Evidence. See Utah R. Evid. 802 ; see also State v. McNeil , 2013 UT App 134, ¶ 44, 302 P.3d 844 (observing that "hearsay is generally inadmissible because the witness is acting as a conduit to relay the personal knowledge or observations of others" (quotation simplified) ), aff'd, 2016 UT 3, 365 P.3d 699.

¶34 Defendant acknowledges that a police officer's explanation of "conduct ... responsive to 'information received' " is not hearsay. See State v. Davis , 2007 UT App 13, ¶ 24, 155 P.3d 909. She points out, however, that "if [the officer] becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of that fact asserted that it should be excluded as hearsay."See id. (quotation simplified).

¶35 At trial, the prosecutor asked one of the police officers, "[W]hat brought you to the scene?" The officer answered, "We responded to a [report of a] female with a gun." As a result, the officer explained, the officers started talking to people to find the woman with a gun. Another officer testified regarding "a dispatch call of a person waving a gun and kids in the area." Defendant contends that these statements constituted inadmissible hearsay. Specifically, Defendant challenges the description of the report of a "female with a gun" rather than merely a "person with a gun."

¶36 We are not persuaded that, under these circumstances, the description is anything more than the "information received" by the officers. First, Defendant does not challenge these statements as the basis for the officers' presence at the apartment complex. In other words, Defendant fails to adequately contest the State's assertion that the statements were not offered to prove the truth of the matter asserted. Additionally, Defendant fails to explain how a report of a "female with a gun" made the statement "more specific by repeating definite complaints of a particular crime by the accused." See id. ¶ 24 (quotation simplified). A report of a female with a gun, although narrower than the description of a "person with a gun," simply is not sufficiently definite to identify Defendant or any particular crime she allegedly committed. Accordingly, we conclude that the trial court did not exceed its discretion when it allowed the description of the report of a female with a gun.

III. Insufficient Evidence

¶37 Defendant next argues that the State presented insufficient evidence to support her conviction for carrying a concealed firearm and that the trial court should have granted her motion for a directed verdict. When assessing the denial of a directed verdict motion based upon insufficiency of the evidence, our review is "highly deferential." State v. Nielsen , 2014 UT 10, ¶ 30, 326 P.3d 645. "We will uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt." State v. Montoya , 2004 UT 5, ¶ 29, 84 P.3d 1183 (quotation simplified). We first address the facts presented at trial, then consider the law as applied to those facts.

¶38 The facts surrounding identification of the location where Defendant was detained and arrested by police officers are not in dispute. Defendant conceded at trial that she possessed a concealed firearm. Consequently, we address the narrower question of whether the State presented sufficient evidence that she had the concealed firearm "in or on a place other than [her] ... property." See Utah Code Ann. § 76-10-504(1) (LexisNexis Supp. 2018). Although Defendant did not live in the apartment unit, she had been visiting Boyfriend at his apartment for a day or two before her arrest. On the morning of the incident and her arrest, Defendant emerged from the bathroom to Brother and Boyfriend pointing a gun at her. Brother and Boyfriend threatened to shoot her and then fled from the apartment. Fearing for her safety, Defendant took a firearm from the closet and concealed it in her bra. She then left the apartment unit and collected Daughter who was coming out of a nearby apartment unit. As police were arriving on the scene, Defendant stepped through the gate of a small fence and waited outside the fenced courtyard area for Sister. The police ultimately detained Defendant in that spot and the State subsequently charged her with carrying a concealed firearm.

¶39 As to the identification of the particular location, Defendant was just outside the fence that surrounded the apartment courtyard but remained on the grassy area between the apartment building and the sidewalk. Defendant testified that though she was "right outside the fence" she did not believe that she had left "the property." The State presented no evidence of property ownership of the grassy area or the delineation of property lines particularly identifying the record owner of that grassy area. The parties and the trial court appear to have approved, however, of the description of that location as a "common area" appurtenant to the apartment complex property.

¶40 The concealed firearms statute prohibits a person from "carry[ing] a concealed firearm ... in or on a place other than the person's residence, [or] property." Id. (emphasis added). When interpreting a statute, our aim "is to give effect to the legislature's intent in light of the purpose that the statute was meant to achieve." Monarrez v. Utah Dep't of Transp. , 2016 UT 10, ¶ 11, 368 P.3d 846 (quotation simplified). Additionally, "we avoid any interpretation which renders parts or words in a statute inoperative or superfluous in order to give effect to every word of a statute." Id. (quotation simplified). By its plain terms-specifically by employing the phrase "other than"-the statute does not proscribe a person's carrying of a concealed weapon while that person is "on ... the person's ... property." Utah Code Ann. § 76-10-504(1) (2012) ; see also id. § 76-10-500(1) ("Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be ... prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control ...."). The meaning of a "person's property" is not so plain, however, and the statute offers no definition applicable in this situation.

¶41 Real property in the possessive context, i.e., carrying a firearm "on the person's property," implies that the person must have ownership of the land in order to benefit from the statute's exemption. "Ownership"

of real estate is not always a simple yes or no proposition, but rather describes "a collection of rights to possess, to use and to enjoy property, including the right to sell and transmit it. The term owner is often used to characterize the possessor of an interest less than that of absolute ownership, such as a tenant for life." Jeffs v. Stubbs , 970 P.2d 1234, 1241-42 (Utah 1998) (quotation simplified); see also Property , Black's Law Dictionary (10th ed. 2014) (defining property as a collection of "rights in a valued resource such as land," which are collectively described as a "bundle of rights"). A person with a fee simple interest in land-one who holds the whole bundle of rights-may indeed argue, likely successfully, that the statute does not criminalize the possession of a concealed firearm while on his or her property. But this does not describe Defendant's circumstances.

¶42 Defendant argues that she was "a temporary resident of the apartment complex" and she therefore "had the right to use the courtyard to the exclusion of others." She testified that she did not live in Boyfriend's apartment but stayed there occasionally. From this evidence, the jury could infer that Defendant is not the fee simple owner of the grassy common area, and that she is not a renter. See, e.g. , Utah Code Ann. § 57-22-2(1), (4), (5) (Supp. 2018) (defining "owner," "renter," and "residential rental unit" as those terms are used in the Utah Fit Premises Act). Moreover, Defendant testified that she did not live in the apartment unit and-prior to her arrest-she had been visiting Boyfriend at his apartment for a day or two. Even assuming, without deciding, that owners of condominiums and apartment-rental tenants who have signed a lease have at least a fractional property interest in the common area, Defendant falls outside of even these categories. Under the circumstances presented here, Defendant has no conceivable ownership interest in the common area of this apartment complex, and therefore the common area cannot be said to be Defendant's "property." And the concealed firearm statute therefore forbids her from carrying a concealed firearm in the common area of this apartment complex.

¶43 Here, as a threshold matter, the jury heard sufficient evidence to determine, beyond a reasonable doubt, that Defendant carried a concealed firearm while not on "her property." Accordingly, we affirm the trial court's denial of Defendant's motion for a directed verdict on this count.

IV. Cumulative Error

¶44 Defendant asserts that the cumulative effect of the alleged errors undermines confidence in the jury's verdict. Considering all alleged errors, and any we assume may have occurred, we "reverse only if the cumulative effect of the several errors undermines our confidence" that Defendant has received a fair trial. See State v. King , 2010 UT App 396, ¶ 17, 248 P.3d 984 (quotation simplified). "But if the claims are found on appeal to not constitute error, or the errors are found to be so minor as to result in no harm, the doctrine will not be applied." State v. Maestas , 2012 UT 46, ¶ 363, 299 P.3d 892 (quotation simplified).

¶45 We agree with Defendant that one error occurred at trial-the court should have provided the innocent-possession defense jury instruction on her drug possession charge, and thus we reverse that conviction. Because we have identified no other errors, the doctrine does not apply. See State v. Beverly , 2018 UT 60, ¶ 80, 435 P.3d 160 ("[T]he cumulative-error doctrine has no application when only a single error has been determined or assumed on appeal."); see also ConocoPhillips Co. v. Utah Dep't of Transp. , 2017 UT App 68, ¶ 31, 397 P.3d 772.

CONCLUSION

¶46 The trial court erred when it refused to provide the jury with an innocent-possession instruction regarding Defendant's possession of a controlled substance. However, the trial court did not err when it denied Defendant's request for a compulsion defense instruction for her possession of drugs or for her possession of a loaded, concealed firearm. The trial court did not exceed its discretion when it overruled Defendant's hearsay objections to testimony from officers that they responded to a call of a woman with a gun. We are not persuaded that the court erred when it denied Defendant's motion for a directed verdict on the concealed firearm charge. We lastly conclude that the cumulative error doctrine does not apply because we have identified only one error in the proceedings below. We reverse Defendant's conviction for possession of a controlled substance and remand for a new trial on that charge and otherwise affirm.

      See Miranda v. Arizona , 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Because the relevant provision has not changed, we cite the most recent version of the statute for convenience.

      Although we reverse Defendant's conviction for possession of a controlled substance, we address this issue because we anticipate it may arise again below. See State v. Ogden , 2018 UT 8, ¶ 49, 416 P.3d 1132 (noting that appellate courts "retain the authority to reach issues when ... our analysis could prove helpful on remand").

      The concealed firearms statute defines "residence" as "an improvement to real property used or occupied as a primary or secondary residence." Utah Code Ann. § 76-10-501(17) (LexisNexis 2012). Because the parties do not dispute that Defendant possessed the firearm on the grassy area outside of the apartment's gate, and because no party argues that Defendant resided, even temporarily, in this area of the apartment complex, Defendant cannot be said to have been charged with carrying a concealed firearm in her "primary or secondary residence." See id. We also note that this statutory provision is subject to other exceptions not relevant to the circumstances of this case, so we do not address these other exceptions. See generally id. § 76-10-504 (Supp. 2018).


source: Caselaw Access Project

author: MORTENSEN, Judge:

license: Public Domain

text:
    STATE of Utah, IN the INTEREST OF G.D.B., a Person Under Eighteen Years of Age.
    G.D.B., Appellant, v. State of Utah, Appellee.
    No. 20170257-CA
    Court of Appeals of Utah.
    Filed February 22, 2019
    Monica Maio and Alicia M. Memmott, Attorneys for Appellant
    Sean D. Reyes, Nathan D. Anderson, Salt Lake City, and Mikelle C. Daugherty, Attorneys for Appellee
    Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.
    Opinion
   MORTENSEN, Judge:

¶1 G.D.B., a minor, appeals the juvenile court's adjudication finding him delinquent on one count of sexual abuse of a child for touching his four-year-old niece's vagina and trying to put his penis "in [her] bum." G.D.B. argues that the State failed to prove the touching was done with the intent to arouse or gratify G.D.B.'s sexual desires, as required by Utah Code section 76-5-404.1. We affirm.

BACKGROUND

Revelation of Abuse

¶2 G.D.B. was seven-and-a-half years older than the four-year-old victim, his niece (Victim). G.D.B. and Victim spent a lot of time together. Victim's mother (Mother) babysat G.D.B. and took him on outings with Victim. On most weekends, Victim stayed with her grandmother (Grandmother), who is G.D.B.'s mother. Victim usually slept in Grandmother's room, but she claimed she occasionally slept in the living room, where G.D.B. also slept. Although Grandmother was always nearby in the apartment, G.D.B. and Victim were sometimes alone in the same room together.

¶3 One evening in February or March 2016, Victim and Mother were watching a television show about people trying to survive naked in the wild. Victim asked Mother, "[W]hy are their private parts fuzzed out?" Mother answered, "[B]ecause private parts are ... for them to see and not for the world to see." Victim responded, "[W]ell, [G.D.B.] always wants to see my private parts." Victim then revealed to Mother that G.D.B. touched her vagina and assured Mother that she was telling the truth.

¶4 After hearing Victim's account, Mother no longer allowed Victim to stay at Grandmother's apartment. While she missed visiting Grandmother, Victim did not want to see G.D.B. Victim said that she felt "safe" around G.D.B. only when others were present because "she knew [G.D.B.] wouldn't [touch her inappropriately] in front of somebody else." Mother reported the incident to Child Protective Services (CPS).

¶5 About a month later, while using the bathroom on a camping trip, Victim asked Mother how boys urinate. Mother explained that boys have different body parts. Victim responded, "I know they have a penis .... [G.D.B.] always tried to stick his penis in me." When Mother asked where on her body, Victim indicated her vagina. Mother also disclosed this information to CPS.

Investigation of Abuse

¶6 In June 2016, a special victim's investigator (Investigator) interviewed Victim at the Children's Justice Center (CJC) about the abuse she had revealed to Mother. According to Investigator, Victim was "developmentally able to communicate accurately about the situation." Victim said that G.D.B. touched "her private parts," defined by Victim as her vagina and buttocks, more than once. Victim revealed that G.D.B. touched her with his hands over her clothing. Victim also stated that she repeatedly tried to stop G.D.B. from touching her, but G.D.B. refused to stop.

¶7 Shortly after the CJC interview, Victim received a medical examination conducted by a nurse practitioner (Nurse) specializing in sexual abuse exams. Victim told Nurse that G.D.B. had touched "her front part" with his hands under her clothes and that the touching hurt.

¶8 Although Victim's physical examination was normal and showed no signs of abuse, Nurse determined that Victim "had a significant history that was positive for sexual abuse" based on Victim's answers to Nurse's questions. Nurse clarified that a normal exam does not rule out sexual abuse, because "95 percent of children who make allegations of sexual abuse have normal exams."

¶9 Based on the CJC interview and the medical exam, the State filed a petition alleging that G.D.B. had sexually abused Victim in violation of Utah Code section 76-5-404.1. The relevant subsection of the statute provides:

An individual commits sexual abuse of a child if, under circumstances not amounting to rape of a child, object rape of a child, sodomy on a child, or an attempt to commit any of these offenses, the actor touches the anus, buttocks, pubic area, or genitalia of any child, the breast of a female child, or otherwise takes indecent liberties with a child, with intent to cause substantial emotional or bodily pain to any individual or with the intent to arouse or gratify the sexual desire of any individual regardless of the sex of any participant.

Utah Code Ann. § 76-5-404.1(2) (LexisNexis Supp. 2018).

Testimony at Trial

¶10 At trial, Victim testified that G.D.B. "put his finger in [her] vagina .... [o]ne time" and "his penis in [her] bum .... all the time, every single time" she would stay at Grandmother's apartment. This abuse occurred in the living room, where G.D.B. slept and where Victim claimed that she sometimes also slept.

¶11 G.D.B. admitted that he and Victim were sometimes left alone together. But he denied that he and Victim slept in the same room. He also said that he had never touched Victim "inappropriately," played "house" or "doctor" with her, accidentally touched her private parts, changed her clothes, helped her use the bathroom, given her a bath, or seen her naked.

¶12 Grandmother testified that Victim and G.D.B. never slept in the same room together, Victim was never alone with G.D.B., and Victim never told her that G.D.B. touched her.

Disposition in the Juvenile Court

¶13 G.D.B. made two points in closing argument. First, he argued that Victim was not a credible witness, alleging that inconsistencies in Victim's statements at the CJC interview, during the medical examination, and at trial discredited her testimony. Second, G.D.B. asserted that the State had failed to prove the sexual intent element:

[ Utah Code section 76-5-404.1(2) ] has an intent element. It's not just touching. There has to be touching the breast, the anus, the butt of a child, with the intent to arouse or gratify, to cause substantial bodily, emotional or bodily pain. There's been no evidence whatsoever that the State has put on that has met that intent element, zero evidence. There is absolutely no physical evidence.

Counsel concluded by arguing that the State had failed to meet its burden of proof generally. Counsel, however, never asserted that G.D.B.'s age or immaturity affected his ability to form a sexual intent and never specifically asked the juvenile court to consider his age in rendering its decision.

¶14 In its closing argument, the State countered that Victim's testimony was credible even though some of the "details [got] mixed up." The State asserted that "inconsistencies in [Victim's] statement about what happened ... can be attributed to how many times this happened to her, and how she in her mind, her five-year-old mind, she can't distinguish, and she can't articulate the different times this happened, because it happened so many times."

¶15 The State further argued that sexual intent could be inferred from the circumstances of the touching, and it emphasized that G.D.B. offered no innocent explanation for any touching. Specifically, the State argued that "this touching did not happen during bathing, did not happen during changing clothes, did not happen when [G.D.B.] helped [Victim] use the bathroom or to help wipe her." The State urged the court to "turn to what was happening when this touching happened." G.D.B. and Victim "were alone in the living room. [G.D.B.'s] intent can be inferred from his actions at that time. What other intent would he have to be touching [Victim] on her vagina with ... his hands, or touching her butt with his penis, if it's not to sexually gratify himself?"

¶16 Immediately after closing arguments, the court took a recess expressly to consider the issue of intent. Upon reconvening, the court acknowledged inconsistencies in Victim's account. But, "given that she's five years old," the court determined there was "some credibility" to her testimony to support the conclusion that G.D.B. touched Victim.

¶17 The court further stated that, in addition to reviewing applicable code provisions, it had looked at the decisions of In re D.M. , 2013 UT App 220, 310 P.3d 741, and In re J.S. , 2012 UT App 340, 292 P.3d 709. The court explained that "while intent is difficult to ascertain," these cases support the proposition that "it is appropriate to infer intent from conduct and life experience." G.D.B. did not take issue with the court's summary of the law. The juvenile court then concluded that G.D.B. "took indecent liberties with [Victim], and ... the only [ ]possible intent that [G.D.B.] could have in doing this was to arouse or gratify his sexual desires." Based on this reasoning, the juvenile court concluded that the State had "proven the allegation beyond a reasonable doubt" and found G.D.B. delinquent. G.D.B. appeals.

ISSUE AND STANDARD OF REVIEW

¶18 G.D.B. contends that the juvenile court erred in deciding there was sufficient evidence of sexual intent. "When reviewing a bench trial for sufficiency of evidence, we must sustain the trial court's judgment unless it is against the clear weight of the evidence, or if the appellate court otherwise reaches a definite and firm conviction that a mistake has been made." State v. Miller , 2017 UT App 171, ¶ 7, 405 P.3d 860 (cleaned up).

ANALYSIS

¶19 The pertinent elements of sexual abuse of a child are (1) "touch[ing] the anus, buttocks, pubic area, or genitalia of any child" (2) "with the intent to arouse or gratify the sexual desire of any individual." Utah Code Ann. § 76-5-404.1(2) (LexisNexis Supp. 2018). "The State bears the burden of proving each and every element of a criminal offense beyond a reasonable doubt." State v. Whitaker , 2016 UT App 104, ¶ 11, 374 P.3d 56.

A. Inappropriate Touching of Victim

¶20 As G.D.B. acknowledges in his brief, the juvenile court found Victim's testimony credible. "Because the juvenile court is in an advantaged position with respect to the parties and the witnesses, we do not disturb its determinations of the witnesses' credibility." In re S.Y.T. , 2011 UT App 407, ¶ 51, 267 P.3d 930 (cleaned up). G.D.B. concedes that, given the deference afforded to trial courts in making credibility determinations, the State met its burden in establishing the first element of sexual abuse of a child.

B. Inference of G.D.B.'s Sexual Intent

¶21 But G.D.B. argues that the juvenile court erred in its determination that the second statutory element-that G.D.B. acted with the requisite sexual intent-was met. G.D.B. asserts that the State offered no direct evidence of sexual intent. "Although [G.D.B.] is correct that there was no direct evidence of his intent to gratify or arouse a sexual desire, intent is a state of mind, which is rarely susceptible of direct proof." See In re D.M. , 2013 UT App 220, ¶ 10, 310 P.3d 741 (cleaned up); see also State v. Robertson , 2005 UT App 419, ¶ 15, 122 P.3d 895 (same). Given the rarity of direct evidence showing the intent to gratify, intent "can be inferred from conduct and attendant circumstances in the light of human behavior and experience." In re D.M. , 2013 UT App 220, ¶ 10, 310 P.3d 741 (cleaned up); see also State v. Holgate , 2000 UT 74, ¶ 26, 10 P.3d 346 ("[I]ntent may be proven by circumstantial evidence and reasonable inferences drawn therefrom, and intent is rarely established by direct evidence."); In re J.S. , 2012 UT App 340, ¶ 5, 292 P.3d 709 ("Intent is a state of mind that can be inferred from a person's conduct viewed in light of all the accompanying circumstances. It is well established that intent can be proven by circumstantial evidence." (cleaned up) ). And as this court recently noted, "[s]uch inferences are routinely employed in cases requiring proof of sexual intent." In re D.M. , 2013 UT App 220, ¶ 10, 310 P.3d 741.

¶22 G.D.B. argues that the State has also failed to provide any circumstantial evidence that he acted with sexual intent. G.D.B. concedes that "a touching of [genitalia] occurring between an adult and child could reasonably give rise to an inference of intent because there is 'no conceivable explanation for the circumstances ... other than to arouse or gratify the sexual desire of any person.' " (Quoting State v. Tueller , 2001 UT App 317, ¶ 20, 37 P.3d 1180.) But G.D.B. argues that an inference of sexual intent "cannot and should not always be made when the touching occurs between two children. Rather, in cases where ... the alleged offender is also a child under the age of consent, courts must consider that child's age, maturity, and sexual development in determining whether the State has proven that the child acted with the requisite sexual intent." G.D.B. argues that "there is nothing in the record to suggest that the juvenile court made those considerations." We disagree.

¶23 The record here reflects that under both controlling law and the circumstances of this particular case, the juvenile court had a reasonable basis to infer G.D.B.'s intent to arouse or gratify his sexual desires. In large measure, we see this issue as controlled by In re D.M. , a case in which an eleven-year-old touched the genitalia of a nine-year-old victim, and we concluded that sexual intent could be inferred from the circumstances. 2013 UT App 220, ¶ 11, 310 P.3d 741. During a sleepover, D.M. dared his victim to crawl under a futon. Id. ¶ 2. D.M. joined him and asked him to remove his pants. Id. When the victim refused, D.M. pulled down the victim's pants and touched victim's genitals for a short period of time. Id. The juvenile court adjudicated D.M. delinquent on sexual abuse of a child. Id. ¶ 1. On appeal, D.M. argued that there was insufficient evidence of sexual intent. Id. ¶ 9. A panel of this court determined that, "[i]n light of D.M.'s conduct in exposing and touching [the victim's] testicles and the attendant circumstances," the juvenile court's inference of sexual intent was not "so flawed as to render the inference clearly erroneous." Id. ¶ 11 (cleaned up). D.M. further argued "that the ordinary standards for inferring sexual intent are insufficient to establish his intent because he was only eleven years old at the time of the offense." Id. ¶ 12. But the panel in In re D.M. concluded that there was "no indication that the juvenile court failed to consider D.M.'s young age in determining that he possessed the requisite intent." Id. That panel also noted that D.M. presented "no Utah authority for the proposition that an eleven-year-old cannot possess sexual intent as a matter of law, nor did [D.M.] present evidence below that eleven-year-olds in general-or himself in particular-are incapable of forming sexual intent." Id. Likewise, G.D.B. presented no such evidence here.

¶24 G.D.B. argues that In re D.M . is factually distinguishable. First, he points out that D.M.'s victim was said to be "scared"

and "very credible." See In re D.M. , 2013 UT App 220, ¶ 11, 310 P.3d 741. G.D.B. asserts that there was no evidence that Victim was scared and the juvenile court found her only "somewhat credible." Second, G.D.B. argues that the In re D.M. court concluded that there was no indication that the juvenile court had failed to consider D.M.'s young age in determining he possessed sexual intent. See id. ¶ 12. G.D.B. asserts that his case differs because there was no evidence that the juvenile court considered G.D.B.'s age and or maturity at all. We find neither attempt to distinguish In re D.M. from the present case persuasive for three reasons.

¶25 First, whether a victim must be "scared" by a sexual abuser's conduct is irrelevant. The issue is the intent of the abuser, not how the abuse makes the victim feel. Furthermore, even if a victim's feelings were somehow relevant, there is ample evidence that Victim did not like G.D.B.'s touching. She avoided being alone with G.D.B. She said the touching "hurt" her, and she repeatedly tried to stop G.D.B. While Victim did not say she was "scared," there is certainly evidence that she found G.D.B.'s touching intrusive and unwelcome.

¶26 Second, the strength of Victim's credibility is not the key issue disputed in this case. As G.D.B. admitted, the juvenile court found Victim to be credible. With regard to credibility issues, this court defers "to the juvenile court because of its advantaged position with respect to the parties and the witnesses in assessing credibility and personalities." In re J.C. , 2016 UT App 10, ¶ 13, 366 P.3d 867 (cleaned up); see also In re S.Y.T. , 2011 UT App 407, ¶ 51, 267 P.3d 930 ("Because the juvenile court is in an advantaged position with respect to the parties and the witnesses, we do not disturb its determinations of the witnesses' credibility." (cleaned up) ). In the present case, the juvenile court, despite having some reservations about Victim's credibility, ultimately determined that Victim was more credible than G.D.B. and Grandmother. And the juvenile court expressly found that quantum of evidence sufficient to meet the reasonable doubt standard.

¶27 Third, in arguing that the juvenile court failed to consider G.D.B.'s age and maturity, G.D.B. ignores the obvious fact that his case was heard in a juvenile court. The raison d'être of the juvenile court system is to provide a suitable forum for young offenders. As our courts have repeatedly asserted, juvenile courts provide a "tribunal geared toward the special needs of youth offenders." State v. Schofield , 2002 UT 132, ¶ 17, 63 P.3d 667 ; see also In re K.M. , 2007 UT 93, ¶ 41, 173 P.3d 1279 (Wilkins, J., concurring) (stating that the difference between children and adults is "the single most important motivation for the establishment of a separate juvenile court system"). Juvenile court judges are "steeped in the policy and theory of juvenile justice." In re K.M. , 2007 UT 93, ¶ 39, 173 P.3d 1279 (Wilkins, J., concurring). And, "[r]ecognizing the differences in adult and juvenile behavior and culpability," our supreme court has held that juvenile courts "take age, experience, and emotional maturity into consideration when considering [a minor's] ability to give consent, waive rights, and suffer consequences." R.G. v. State , 2017 UT 79, ¶ 15, 416 P.3d 478.

¶28 Thus, owing to the very nature of the juvenile court system, we may presume, in the absence of any indication to the contrary, that the juvenile court in this case appropriately considered G.D.B.'s age and maturity in reaching its adjudication. See In re D.M. , 2013 UT App 220, ¶ 12, 310 P.3d 741 (noting that "we see no indication that the juvenile court failed to consider [the juvenile's] young age in determining that he possessed the requisite intent"). While it would certainly be helpful for juvenile courts to make explicit their consideration of the juvenile's age and maturity in reaching their conclusions regarding a juvenile's sexual intent, and we encourage juvenile courts to do so, the absence of an express finding along these lines does not necessarily render the juvenile court's decision reversible.

CONCLUSION

¶29 We conclude that the record contains sufficient evidence to support the juvenile court's adjudication and that the juvenile court could infer the requisite sexual intent. Accordingly, we affirm.

      "On appeal from a bench trial, we view the evidence in the light most favorable to the trial court's findings." State v. Whitaker , 2016 UT App 104, ¶ 2, 374 P.3d 56.

      Victim was between four- and four-and-a-half-years old and G.D.B. was between eleven-and-a-half and a few weeks shy of his twelfth birthday when the incidents of abuse occurred.

      Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code.

      In the CJC interview, Victim stated that she told Grandmother that G.D.B. had touched her inappropriately, and that Grandmother had "gotten mad" at G.D.B.

      We note, as G.D.B. acknowledged at oral argument, that G.D.B. did not argue below and has not asserted in his briefs on appeal that we should overturn, modify, or otherwise revisit In re D.M. , 2013 UT App 220, 310 P.3d 741. We recognize that arguments to do so may exist in light of recent decisions such as J.D.B. v. North Carolina , 564 U.S. 261, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011), which held that a minor's age must be considered in determining custody status and entitlement to a Miranda admonition. But such issues are not squarely before us here.


author: HARRIS, Judge:

text:
    Lee Ralph JAMES, Petitioner, v. The Honorable Elizabeth HRUBY-MILLS and West Valley City, Respondents.
    No. 20180507-CA
    Court of Appeals of Utah.
    Filed February 22, 2019
    Kendall Peterson and Bradley G. Nykamp, Salt Lake City, Attorneys for Petitioner
    Brent M. Johnson, Salt Lake City, and Michael C. Drechsel, Attorneys for Respondent the Honorable Elizabeth Hruby-Mills
    Ryan D. Robinson and Cory D. Sherwin, Attorneys for Respondent West Valley City
    Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Diana Hagen concurred.
    Opinion
   HARRIS, Judge:

¶1 In this case, we are asked to determine whether the time-computation methodology set out in rule 2 of the Utah Rules of Criminal Procedure should be applied to compute the days during which a probationer is on probation. We conclude that it should, and therefore determine that the prosecutor's probation violation report was timely filed on the last day of Lee Ralph James's probation period. Accordingly, the district court correctly ruled that the justice court had authority to revoke James's probation, and we therefore deny James's petition for extraordinary relief.

¶2 On November 12, 2014, in West Valley City Justice Court, James pled guilty to misdemeanor assault. The court imposed a jail sentence of 180 days, but suspended that sentence and placed James on probation "for twelve months." Among other conditions of probation, the court ordered James not to commit "violations of the law[,] save perhaps a minor traffic offense." Exactly one year later, on November 12, 2015, West Valley City (the City) prosecutors filed an affidavit in support of a motion for order to show cause, alleging that James had violated his probation by, among other things, committing another assault on November 5, 2015, before the expiration of the twelve-month probationary period. After holding an evidentiary hearing, the justice court found James to be in violation of his probation and sentenced him to additional jail time.

¶3 James appealed the justice court's decision to the district court, as is his right under rule 38 of the Utah Rules of Criminal Procedure, and argued that the order to show cause affidavit had been filed at least one day too late. He asserted that the "twelve-month" probationary period to which he had been sentenced had expired at midnight (i.e., 11:59 p.m.) on November 11, 2015, and that expiration of that time period deprived both the justice court and the district court of authority to revoke his probation. James further argued that, even though the alleged probation violation had occurred on November 5, during the probationary period, the City's failure to alert the court of that violation before the end of the probationary period deprived the court of authority to take action related to the alleged violation.

¶4 The district court initially agreed with James and dismissed his case, but later reconsidered its ruling and determined that, as calculated under the method set forth in rule 2 of the Utah Rules of Criminal Procedure, James's probationary period did not expire until midnight (i.e., 11:59 p.m.) on November 12, and the City had therefore timely filed its affidavit. The district court eventually found James in violation of probation and remanded the matter to the justice court, which sentenced James to sixty additional days in jail. Before serving his sixty-day sentence, James filed a petition for extraordinary writ with this court.

¶5 James argues that the twelve-month probationary period imposed by the justice court in 2014 expired before the filing of the City's probation violation report, thus divesting the court of power to find him in violation of his probation. "A court's power to grant, modify, or revoke probation is purely statutory." State v. Orr , 2005 UT 92, ¶ 18, 127 P.3d 1213 (quotation simplified). Questions of statutory interpretation are questions of law which we review for correctness. State v. Wallace , 2006 UT 86, ¶ 5, 150 P.3d 540.

¶6 James's argument is premised upon two critical assumptions: first, that James's probationary period really did expire at midnight on the eleventh; and second, that the City's failure to file a probation violation report within that probationary period deprived the justice court of the power to revoke his probation even for violations that occurred within the probationary period. Because we conclude that James's first assumption is infirm, we deny James's petition without reaching the merits of the second.

¶7 The Utah Rules of Criminal Procedure "govern the procedure in all criminal cases in the courts of this state except juvenile court cases." Utah R. Crim. P. 1(b). Those rules have a provision-rule 2-that governs the computation of periods of time, and the version of rule 2 in effect at the time James was sentenced stated as follows:

In computing any period of time , the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday.

Utah R. Crim. P. 2(a) (2014) (emphasis added). If the method of time computation prescribed by rule 2 is applicable to computation of James's probationary period, then that period ended at the end of the day on November 12, 2015, rather than the day before, and the City's probation violation report was filed a few hours before that period ended.

¶8 James resists the application of rule 2 's time-computation methods in this case, and argues, for several reasons, that application of rule 2 would impermissibly lengthen his probationary period from "twelve months" to "twelve months plus one day."

¶9 First, James argues that application of rule 2 would violate Utah Code section 77-18-1(10)(a)(i) (LexisNexis 2014), which limits probation for class B misdemeanors to twelve months. This argument is misguided. As an initial matter, the statute does not define the term "twelve months," or give any indication as to how that period of time is to be computed. Thus, there is no indication, from the statutory language, that defining "twelve months" by reference to rule 2 would be contrary to legislative intent. Indeed, the 2014 version of rule 2 applies to "any period of time" applicable in a criminal case, see Utah R. Crim. P. 2(a) (2014), and the current version of rule 2 specifically applies to "any time period ... in any statute that does not specify a method of computing time," see id. R. 2(a) (2018).

¶10 Moreover, our supreme court has held that section 77-18-1(10)(a)(i) does not contain a firm statutory cap on the length of probationary periods, because the statute provides that "[p]robation may be terminated at any time at the discretion of the court." Wallace , 2006 UT 86, ¶ 13, 150 P.3d 540 (stating that the governing statute "does not impose any limitation on the length of probationary term that a court may impose," and that therefore the statutory cap on probation time "is nearly meaningless, since the court may terminate probation 'at any time' "); see also State v. Candedo , 2010 UT 32, ¶ 15, 232 P.3d 1008 ("[A] sentencing court has full discretion to determine the length of a defendant's probation under Utah's probation statute.").

¶11 Second, James argues that, even without a firm statutory cap, the district court chose to sentence him to "twelve months" probation, rather than some longer period, and James correctly points out that-absent some language to the contrary in the sentencing order-a probationer's probationary period begins immediately upon sentencing (rather than beginning the next day). See generally State v. Love , 2014 UT App 175, 332 P.3d 383 ; State v. Moya , 815 P.2d 1312 (Utah Ct. App. 1991). But these facts do not mean that James's probationary period, if computed according to rule 2, would be for a period longer than "twelve months." As noted, the 2014 version of rule 2 applies to "any period of time" applicable in a criminal case, see Utah R. Crim. P. 2(a) (2014), and the current version of rule 2 specifically applies to "any time period specified in ... any ... court order," see id. R. 2(a) (2018). In the name of uniformity, rule 2 sets forth specific rules for the computation of time periods, including "twelve months," and we perceive nothing unlawful about the fact that, in most cases (including James's case), depending on factors such as the time of day in which the sentencing occurs, this method of computation will result in the term "twelve months" being used to refer to probationary periods that end up being several hours longer than 365 days/8,760 hours.

¶12 Third, James argues that rule 2-like all of the rules of criminal procedure-is intended to apply only to "procedural" matters, see Utah R. Crim. P. 1(b) (stating that the rules "shall govern the procedure in all criminal cases"), and posits that the computation of his probationary period is a substantive (rather than a procedural) matter. The computation of time strikes us as an intuitively procedural matter, see Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co. , 559 U.S. 393, 407, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) (plurality opinion) (stating that a rule "regulate[s] procedure" if "it governs only the manner and the means by which the litigants' rights are enforced," but not if it "alters the rules of decision by which the court will adjudicate those rights" (quotation simplified) ), but even if we were to consider the computation of time associated with a probationary period to be "substantive," we are still convinced that rule 2 would apply. As an initial matter, James reads too much into rule 1(b) : that rule's mention of the uncontroversial fact that the rules of criminal procedure govern procedural issues should not be read to exclude the possibility that the rules might also include discussion of some substantive issues. Examination of the rules as a whole reveals that they include discussion of a number of issues that arguably could be considered substantive, or that at least have significant constitutional implications. See, e.g. , id. R. 7B(b) (discussing the probable cause standard that applies at preliminary hearings); id. R. 8(a) (stating that a defendant "has the right to self representation, and if indigent, has the right to court-appointed counsel" in most cases); id. R. 40(b) (stating that "[p]roperty or evidence may be seized pursuant to a search warrant if there is probable cause to believe" that the property was unlawfully acquired or is connected to illegal conduct).

¶13 Moreover, although to our knowledge no Utah appellate court has spoken on this matter, federal courts have applied their analogous rule-based time-counting methodology to the computation of probationary time periods. See e.g. , United States v. Strada , 374 F.Supp. 680, 683 (W.D. Mo. 1974) (applying the time-counting methods from rule 45 of the Federal Rules of Criminal Procedure to compute the length of a defendant's probationary period), aff'd , 503 F.2d 1081 (8th Cir. 1974) ; 8A Fed. Proc., L.Ed. § 22:34 (2019) ("Where a defendant is given a five-year probation commencing on March 28 of a particular year, the period of the probation runs to and includes all of the day of March 28 in the fifth following year.").

¶14 Finally, our legislature has delegated to the courts the authority to impose probationary terms essentially without limit. See Wallace , 2006 UT 86, ¶ 13, 150 P.3d 540. Utah courts derive their power to impose and revoke probation from statute. Orr , 2005 UT 92, ¶ 18, 127 P.3d 1213 ; see also State v. Green , 757 P.2d 462, 464 (Utah 1988) (stating that "the power to revoke probation must be exercised within legislatively established limits"). And without a statutory limit on the length of probation, the application of rule 2 to this case does not, as James contends, "alter, expand or modify the substantive law." Indeed, as the probation statute has been interpreted by our supreme court, the legislature gave the courts the power to sentence defendants to probation for any amount of time the courts see fit, and the courts' decision to define how that time period should generally be computed-absent a more specific provision in the applicable court order-strikes us as entirely in keeping with the mandates of the substantive law.

¶15 James was sentenced to "twelve months" probation on November 12, 2014. Rule 2 of the Utah Rules of Criminal Procedure applies here to provide the definition of the term "twelve months" and, under that computation method, James's probationary period ended at midnight (i.e., 11:59 p.m.) on November 12, 2015. Accordingly, because the City's order to show cause affidavit was filed a few hours before the conclusion of that probationary period, the justice court had power to consider the City's affidavit and revoke James's probation.

¶16 Petition denied.

      The City argues that this court lacks jurisdiction to grant extraordinary relief because parties are authorized to take an appeal from a district court's decision in a justice court appeal only if "the district court rules on the constitutionality of a statute or ordinance," which did not occur in this case. See Utah Code Ann. § 78A-7-118(8) (LexisNexis 2018). This language would be dispositive of our jurisdiction if James had pursued a direct appeal. But James filed a petition for extraordinary writ under rule 19 of the Utah Rules of Appellate Procedure. It is precisely because James could not appeal directly that he is able to seek extraordinary relief. See Utah R. Civ. P. 65B(a) (stating a party may seek extraordinary relief only when "no other plain, speedy and adequate remedy is available"). And James had already exhausted his available avenues for appeal, exactly as required of parties seeking extraordinary relief. See Friends of Great Salt Lake v. Utah Dep't of Nat. Res. , 2010 UT 20, ¶ 23, 230 P.3d 1014 ("Before we can address a petition for extraordinary relief, the petitioning party must have exhausted all available avenues of appeal." (quotation simplified) ). Under the circumstances presented here, we have jurisdiction to grant extraordinary relief.

      In addition, both parties appear to assume that, if the City's probation violation report was filed within the probationary period, the justice court had authority to adjudicate the allegations related to the probation violation, even if that adjudication was not completed prior to the expiration of the probationary period. Because we are not asked to do so, we do not address the validity of this assumption.

      We asked for supplemental briefing on the second issue, and we appreciate the parties' helpful submissions, even though we do not reach the merits of the issue.

      Rule 2 was significantly changed in 2015. See Utah R. Crim. P. 2, amendment notes (stating that "[t]he 2015 amendment rewrote the rule"). Neither party has fully briefed the question of whether the current version of rule 2 should apply, or whether the version in effect at the time of James's sentencing should apply. Ultimately, the question is academic, because-assuming rule 2 applies at all-the computation of James's probationary period is the same regardless of which version of the rule applies. See id. (stating that the current rule's time-computation formula applies "in computing any time period specified in ... any ... court order, or in any statute that does not specify a method of computing time," and setting forth a method for computing time that, as applied to this case, results in the identical computation as obtained under the 2014 version of the rule). Out of an abundance of caution, however, we cite here to the version of rule 2 that was in force at the time of James's sentencing, and we cite to both versions of the rule at various points in this opinion.

      Under rule 2 's system of time computation, James's probationary period would still have extended through November 12, 2015, even if the day-counting had begun on November 11, 2014 (instead of on November 12, 2014). This is because November 11, 2015 was Veterans' Day, a legal holiday that, under rule 2, cannot serve as the last day of the period.

      James cites, and we have found, no statute governing how probationary periods-whether dictated by statute or by court order-are to be computed. Presumably, the legislature knew how the courts compute time when it enacted the probation statutes; the courts' method is found in both rule 2 of the Utah Rules of Criminal Procedure and rule 6 of the Utah Rules of Civil Procedure. If the legislature had intended for a method of counting time different than the one set forth in rule 2, it could have so stated.

      Indeed, Utah courts seem to have taken it as a given that this is how a probationary period is computed. See, e.g. , State v. Orr , 2005 UT 92, ¶¶ 2-4, 127 P.3d 1213 (describing Orr's probation as running through May 12, 2003, when Orr was sentenced to thirty-six months of probation on May 12, 2000); State v. Call , 1999 UT 42, ¶¶ 2, 12, 980 P.2d 201 (describing Call's probation as expiring on either April 3 or April 8, 1995, depending on whether Call's three years of probation began on April 3 or April 8, 1992); State v. Dickey , 841 P.2d 1203, 1206 (Utah Ct. App. 1992) (describing Dickey's probation as running through November 19, 1986, when Dickey was sentenced to twelve months of probation on November 19, 1985).

      Nor does the use of a procedural rule to set the hour and the day that concludes "twelve months" transform a definite sentence into an indefinite one. James is correct that Utah case law indicates that probationary periods cannot be indefinite. See State v. Candedo , 2010 UT 32, ¶ 22, 232 P.3d 1008 (stating that "defendants ... are not held under probation indefinitely"). But defining the time period through the lens of rule 2 does not make the period indefinite; indeed, rule 2 provides a uniform, predictable way to compute such periods. Moreover, James goes too far when he implies that applying rule 2 to computation of probationary periods would allow the prosecuting entity to make motions, pursuant to rule 2(b), to extend the time period. It does not necessarily follow, simply from application of rule 2(a) to this situation, that rule 2(b) would also apply. The federal courts, in interpreting the analogous rule 6 of the Federal Rules of Civil Procedure, have held that, while the time-counting provisions of rule 6(a) are used to define statutory limitation periods, courts may not use the other provisions of rule 6 to extend periods of time beyond those set by Congress. See, e.g. , Argentine Republic v. National Grid Plc , 637 F.3d 365, 368 (D.C. Cir. 2011) (per curiam) ("Every court to have considered this question has held that Rule 6(b) may be used only to extend time limits imposed by the court itself or by other Federal Rules, but not by statute.").

      In his briefing, James does not do much to address the complexities of the substance-procedure distinction, which can be a "slippery" one. See State v. Rettig , 2017 UT 83, ¶ 56 n.11, 416 P.3d 520 (discussing the "slippery, varying nature" of the terms "substance" and "procedure" and how a law may be substantive in one context but procedural in another); see also Orr , 2005 UT 92, ¶ 18, 127 P.3d 1213 (describing the provisions of Utah Code section 77-18-1 as setting forth "procedures"). Partly for this reason, we assume without deciding that application of rule 2 in this context could be considered substantive, and stop short of making any broad judgment about the matter.


text:
    STATE of Utah, Appellee, v. Eugene Steven MCNAIR, Appellant.
    No. 20170504-CA
    Court of Appeals of Utah.
    Filed February 22, 2019
    Ann M. Taliaferro, Salt Lake City, Attorney for Appellant
    Sean D. Reyes and Erin Riley, Salt Lake City, Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Eugene Steven McNair pleaded guilty to rape, was sentenced to prison, and did not appeal his conviction or sentence. Nearly a decade later, McNair filed a motion to have the time to file his direct appeal reinstated. The district court concluded that McNair failed to establish that he was prevented in any meaningful way from commencing a timely appeal after he was sentenced. He appeals that decision, and we affirm.

BACKGROUND

¶2 In 2006, the State charged McNair with rape, forcible sodomy, and forcible sexual abuse. In November of that year, shortly before trial was scheduled to begin, McNair and the State entered into a plea agreement. That is, McNair agreed to plead guilty to rape and, in exchange, the State agreed to dismiss the two remaining charges.

¶3 In support of the plea agreement, McNair signed a plea statement indicating he understood and acknowledged having been advised of the facts and the rights set forth in that statement. In the signed document, McNair admitted to having sex with the victim without the victim's consent and that his actions constituted rape. McNair accepted that, by pleading guilty, his right to a direct appeal would be limited and that he understood that an appeal of the sentence needed to be filed within thirty days after entry of his sentence. Further, McNair stated that he entered the plea voluntarily and "of [his] own free will and choice."

¶4 At the change-of-plea hearing, the district court asked McNair's defense counsel if he had "discussed [the change of plea]" and "gone over the statement of defendant" with McNair. Defense counsel responded that he had done both. Counsel also stated, "McNair does not read, but I did read the document to him. We covered it twice, once ... yesterday and once today." Defense counsel then affirmed that he was satisfied that McNair understood the meaning and effect of the guilty plea.

¶5 The court asked McNair directly whether he understood "what is being proposed here," and McNair responded, "Yes." McNair further affirmed that he discussed the plea agreement with his counsel and that defense counsel had gone over the written plea statement with him. Finally, McNair acknowledged that defense counsel had read the written plea statement to him and that McNair understood its terms. The court accepted McNair's guilty plea to rape, finding that he entered the plea knowingly, voluntarily, and of his own free will.

¶6 In January 2007, the court sentenced McNair to five years to life in prison. After imposing the sentence, the court did not again advise McNair of his right to appeal or the time limit in which to file such an appeal. See Utah R. Crim. P. 22(c)(1).

¶7 In 2016, McNair filed a motion requesting reinstatement of his time to file a direct appeal. The district court denied McNair's motion and he appeals.

ISSUE AND STANDARDS OF REVIEW

¶8 McNair contends the district court erred when it denied his motion to reinstate the time to file a direct appeal. We review for correctness the district court's legal conclusion that McNair was not unconstitutionally deprived of his right to appeal. See State v. Kabor , 2013 UT App 12, ¶ 8, 295 P.3d 193. But we "give deference to its underlying factual findings," and will not overturn them absent clear error. Id.

ANALYSIS

¶9 Rule 4(f) of the Utah Rules of Appellate Procedure allows a defendant who has been unconstitutionally deprived of the right to appeal to have his appellate rights reinstated. "If the trial court finds by a preponderance of the evidence that the defendant has demonstrated that the defendant was deprived of the right to appeal, it shall enter an order reinstating the time for appeal."

Utah R. App. P. 4(f). Such a remedy may be appropriate in situations where

(1) the defendant asked his or her attorney to file an appeal but the attorney, after agreeing to file, failed to do so; (2) the defendant diligently but futilely attempted to appeal within the statutory time frame without fault on defendant's part; or (3) the court or the defendant's attorney failed to properly advise defendant of the right to appeal.

Manning v. State , 2005 UT 61, ¶ 31, 122 P.3d 628 (citations omitted). McNair argues that Manning 's third scenario applies here. He contends that he was not properly advised by his counsel or the court of his right to appeal. See id.

¶10 As our supreme court has explained, a defendant who relies on the third Manning scenario "must show: (1) that neither the court nor counsel properly advised [him] of [his] right to appeal, and (2) that 'but for' this failure [he] would have filed an appeal." State v. Collins , 2014 UT 61, ¶ 29, 342 P.3d 789 (emphasis added).

¶11 McNair has not established prejudice resulting from any failure of the court or counsel to advise him properly of the right to appeal. That is, he has not shown that but for any failure to properly advise him of his right to appeal, he would have commenced an appeal. See id. When it denied McNair's motion to reinstate the time to file a direct appeal based upon the facts in the record, the district court concluded that McNair failed to present any evidence that he would have appealed "but for" any error. The court observed that McNair had not alleged nor demonstrated that he would have appealed his sentence had he been properly informed of his right to appeal. Defendant therefore failed to "establish that something outside of his control prevented him in some meaningful way from proceeding" to file an appeal. Id. ¶ 28 (quotation simplified).

¶12 In this appeal, as below, McNair does not direct us to any evidence to show that he would have filed an appeal from his sentence in 2007 had he been informed of his right to appeal at sentencing. Instead, he contends that, after sentencing, he "didn't know what to do." McNair also asserts that after his sentencing he and his family sought "answers to questions" from defense counsel, but counsel would not speak to him or them. These vague assertions, without more, do not establish that McNair would have timely appealed his sentence had he been informed properly of his right to do so.

¶13 Further, McNair has not established that he-or others on his behalf-attempted to contact McNair's defense counsel in time to proceed with a timely appeal. Indeed, McNair does not point to any evidence in the record to demonstrate the dates or even the general timeframe he attempted to contact his defense counsel after sentencing. Additionally, McNair has not supported his argument with any record evidence to show that his disability or his attorney's "going dark" effectively prevented him from proceeding with a timely appeal. See Manning , 2005 UT 61, ¶ 1, 122 P.3d 628 ("[C]riminal defendants who fail to file a notice of appeal within the required time period are presumed to have knowingly and voluntarily waived this right and thus have the burden to prove otherwise by establishing that one of the exceptions defined in this case applies."). Consequently, we are not persuaded that the district court erred when it denied his motion to reinstate the time to file a direct appeal.

CONCLUSION

¶14 McNair has not established that he was prejudiced by any failure of the court or his counsel to properly inform him of his right to file a direct appeal. Because McNair fails to meet this burden, we affirm the district court's denial of his motion to reinstate the time to file an appeal.

      In his motion McNair also requested, in the alternative, that the court correct an illegal sentence. See Utah R. Crim. P. 22(e). McNair does not appeal the district court's decision on his illegal-sentence argument.

      McNair makes two other related arguments. He contends that relief should be available under circumstances-not otherwise enumerated in Manning v. State , 2005 UT 61, 122 P.3d 628 -"where, as here, a defendant seeks advice and counsel from his attorney, but is unable to obtain that advice due to trial counsel's complete unwillingness to further communicate with the client." He also argues that, due to intellectual disabilities, he could not file a timely notice of appeal. Neither of these situations fit into the three enumerated Manning scenarios. See id. ¶ 31. More to the point, McNair's claimed circumstances do not establish that he had been "prevented in some meaningful way from proceeding" with an appeal within thirty days of his sentencing, so we decline to extend the reach of Manning to encompass the more general circumstances he alleges here. See id. ¶ 26 ; see also State v. Collins , 2014 UT 61, ¶ 31, 342 P.3d 789 (observing that the "use of the term 'deprived' " in Manning "was crucial because the word encompasses a narrow range of situations where a defendant would have appealed, but had that right taken away or was kept from the possession, enjoyment, or use of that right" (quotation simplified) ); State v. Nicholls , 2017 UT App 60, ¶ 52, 397 P.3d 709 (stating in dicta that, where "trial counsel promised their assistance on the direct appeal, but after sentencing, went dark," this allegation "could broadly encompass Manning relief directed at a sentencing appeal" (quotation simplified) ). While McNair's intellectual disabilities do not bring him under Manning for purposes of a direct appeal, we note that the Post-Conviction Remedies Act (the PCRA) accounts for incapacity-related delays in filing a PCRA petition and may toll the limitations period during a petitioner's incapacity. See Utah Code Ann. § 78B-9-107(3) (LexisNexis Supp. 2018).

      McNair has the burden of establishing, by a preponderance of the evidence, that any error in advising him of his right to appeal was prejudicial. See Collins , 2014 UT 61, ¶ 29, 342 P.3d 789. That is, he must show both that he was not properly advised of his right to appeal and that " 'but for' this failure [he] would have filed an appeal." Id. The parties here acknowledge that neither the sentencing court nor counsel advised McNair, at sentencing, of his right to an appeal and the time limit in which to file. The State argues, however, that McNair was properly advised of the right to appeal in the earlier plea statement that McNair signed and acknowledged he understood. Because we conclude that McNair has not carried his burden of establishing prejudice as a result of any alleged error, we do not analyze whether the court and counsel, under the circumstances here, failed to properly advise him of his right to appeal. See id. We emphasize, however, that following the imposition of a sentence our rules require the district court to complete the relatively easy task of advising "the defendant of defendant's right to appeal, the time within which any appeal shall be filed and the right to retain counsel or have counsel appointed by the court if indigent." Utah R. Crim. P. 22(c)(1).