Wamsley v State

Wamsley filed a petition for post-conviction relief arguing factual innocence based on an affidavit from one of his two victims. The district court, pursuant to Utah Code 78B-9-401 to 405, ordered the State to respond and later dismissed finding the affidavit to be equivocal. The panel affirmed. It held that under the common definition of “equivocal”, an affidavit is equivocal and the case must be dismissed if the affidavit is capable of two interpretations or is ambiguous. Here, the affidavit of the victim did not unambiguously deny the acts which formed the basis of Wamsley’s conviction happen and in any event the affidavit was inconsistent with multiple prior statements by victim and this inconsistency was never explained. The panel further held that there was no compelling showing of factual innocence as the materials submitted were at most impeachment of the other victim and the other victim’s mother which does not set out evidence which would demonstrate that Wamsley did not do the acts alleged in the criminal case.

Finlayson v State

Finlayson’s petition for post-conviction relief was dismissed for lack of prosecution. The panel affirmed. It held the district court was not required to perform a separate interests of justice analysis as those interests are part of the analysis of lack of prosecution motions. It held the dismissal was within the district court’s discretion as Finlayson and his attorney did nothing to move the case along for three years, the State did nothing to inhibit the case’s progression and the delay prejudiced the State. The panel finally noted that because of a new conviction and sentence, even if Finlayson were to prevail on his petition, he would remain in prison and thus cannot be said to suffer any injustice from the dismissal.

In re N.A.D. (N.A.D. v State)

N.A.D. was adjudicated delinquent based on a finding that he raped a child. He challenged his adjudication arguing the judge should have been recused, his counsel was ineffective and there was insufficient evidence to sustain the adjudication. The panel affirmed. It held there is no requirement that a judge that hears a motion to suppress must be replaced at trial and thus no due process violation when the same judge heard both the motion and the trial. The panel held there was no deficient performance as the record demonstrated trial counsel investigated the possible effects of N.A.D.’s medication and there is no evidence as to what an expert would have said. The panel finally held that there was sufficient evidence including the victim’s testimony, to sustain the adjudication.

Zappe v Bullock

Bullock appealed the civil stalking order entered against her. The panel affirmed. It held the district court conclusion that two qualifying events occurred was supported by substantial evidence given the permitted credibility determination that Zappe told the truth about the incidents. The panel affirmed the trial court’s exclusion of Zappe’s theft conviction during cross examination as theft is not an inherently deceptive crime and in any event Bullock was able to bring our bizarre behavior on cross examination to impeach Zappe thus any error was harmless.

Griffin v Cutler

Griffin sued Cutler for unpaid legal fees. After a bench trial, the district court ruled some fees were time barred and the remainder were unreasonable and entered judgment for Cutler. The panel affirmed. It held Griffin failed to meet his burden on appeal as to the time bar issue as he failed to provide legal citation or meaningfully explain how the applicable law supported his positon. As to the other claimed fees, the panel held the district court properly considered the relevant factors, such as Griffin’s excessive work on the underlying case, and there was no requirement to do a factor by factor analysis. The panel finally held that Griffin was not entitled to attorney fees as there was no demonstrated breach of the engagement agreement and there was no basis to award prejudgment interest as there is no judgment in his favor.

Law v Department of Workforce Services

Law challenged the denial of unemployment benefits. The panel affirmed holding that Department reasonably concluded Law voluntarily quit as he left the worksite, did not report his concerns that coworkers were intoxicated to his employer and he could have returned to work after the coworkers were drug tested and thus acted unreasonably in the circumstances.

Utah v Ashcraft

Ashcraft appealed her sentence arguing she should have received probation instead of prison. The panel affirmed. It held the sentencing judge properly considered the injuries to the child and Ashcraft’s lack of remorse in imposing sentence and a reference to shaken baby syndrome did not indicate the sentence was based on a finding of shaken baby syndrome. The panel also held the sentencing judge gave proper weight to the effect of a prison sentence on the other children as those children had been removed from the home prior to the injuries to the victim here.

State v Chapman

Chapman appealed his conviction for securities fraud arguing there was insufficient evidence of willful violation and the district court erred in allowing certain expert testimony. The panel, with one judge concurring in part and in judgment, affirmed. The majority held that there was sufficient evidence of willful violation in the record including Chapman’s misrepresentation of the terms of the loan and misrepresentation of the unsecured status of the loan to uphold the conviction. As to the testimony, the majority held that the expert witness gave general answers about the definition of securities, materiality and what a “predicate statement” is without crossing the line and giving legal conclusions. One member of the majority added an opinion noting that the materiality issue raised by the concurring judge was not before the court and thus should not be discussed. The concurrence agreed with the majority on the willfulness issue. However, it argued that the expert testimony on materiality was improperly admitted as it merely stated common sense information within the knowledge of a layman and was thus not helpful and further was based on Utah law and should have been excluded. However, the concurrence stated that because the testimony was merely common sense and the jury would have reached the same verdict, any error was harmless and any prejudice could be cured by cross examination and jury instructions.

State v LoPrinzi

LoPrinzi was convicted of two counts of sexual activity with a minor and acquitted of one count. She challenged the denial of her motion to disqualify the prosecutor’s office, the failure to give a lesser included offense charge, the giving of a flight instruction and denial of her motion for a new trial. The panel, with one judge adding a concurrence, affirmed. It held that LoPrinzi failed to challenge the district court’s finding that there was no prosecutorial misconduct and thus failed to meet her burden on appeal. All members of the panel affirmed the denial of the lessor included offense on the ground that there was no rational basis to convict on the lesser charge as the only evidence was that sex occurred or sex did not occur. Two judges also reasoned that the lesser included offense required nonconsensual touching and there was no evidence here of lack of consent. The panel held that the flight instruction was proper as leaving the jurisdiction after being contact by the police, even two weeks later as here, can indicate consciousness of guilt. The panel finally held that the verdicts were not so irrational as to require acquittal on the two convictions as sufficient evidence from the victim and two other witnesses was sufficient to uphold the convictions. The concurrence noted its view that the consent discussion was unnecessary, that flight instructions should no longer be given and the new rule to review denied lesser included instructions for abuse of discretion instead of correctness will lead to fewer lesser included instructions being given which may harm defendants in the future.