State v Hawker

Hawker appealed her sexual solicitation conviction. The panel, 2 (one judge concurring in part and in judgment)-1, reversed. The lead opinion argued that that 76-10-1313(1)(a) does not reach an agreement to masturbate for a fee while another person watches because the statute requires the act be done “with” someone and the other acts described in the applicable definitions statute, such as sexual intercourse, require the participation of two people and noted that 1313(1)(b), which criminalizes the payer, does not require that the act be done “with” someone reinforcing the conclusion of no violation here. The lead opinion also argued that 1313(1)(c) does not criminalize masturbation for hire as this would lead to an absurd result of criminalizing intent to commit a lawful act. The lead opinion noted the legislative history that (1)(c) was meant to punish prostitutes who require patrons to masturbate to prove they are not police officers and those facts are simply not present here. The concurrence in part and in result argued that 1313(1) simply cannot be read literally as it would criminalize certain offers to masturbate alone for a fee which is an absurd result and the most reasonable reading of the statute of requiring an offer to engage in prohibited acts with another person or sexual display with intent to engage in a prohibited act with another requires a departure from the literal language of the statute. Because the judges on the panel reached three different understandings of what 1313(1) means, the concurrence argued it is ambiguous and the rule of lenity thus applies and reversal is the correct outcome. The dissent argued that 1313 criminalizes solo masturbation for pay as solo self-stimulation is part of the commonly understood meaning of masturbation, 1313(1)(a) and (b) criminalize both offer of money and the offer of the prohibited acts, “with’ does not necessarily require the act be done in conjunction with another person but is instead identifying the transactional relationship required for sexual solicitation, the outcome here undermines the overarching purpose of 1313 and the other anti-prostitution statues of discouraging prostitution and argued the lead opinion is illogical as well as it makes masturbation mean different things for purposes of 1(a) and 1(b).

Salt Lake City Corporation v Gallegos

City appealed an administrative decision ordering the reinstatement of Gallegos as a police officer. The panel set aside the order and remanded for further proceedings. It held the administrative commission properly required City to prove its allegation that Gallegos committed theft as that was the basis of the termination decision and the administrative review is limited to the grounds in the notice of termination. The panel held the administrative commission erroneously reviewed the evidence to see if it supported exoneration of Gallegos rather than review to see if the termination order was supported by substantial evidence. As the evidence could support a finding of theft in that Gallegos retained per diem payments and did not reimburse travel expenses, the case was remanded for further proceedings under the correct standard. The panel finally held the administrative commission considered a letter City alleged was excluded from evidence and properly excluded evidence of theft criminal charge because it was not included in the notice of termination.

Schenk Family Limited Partnership v NorthShore Limited Partnership

NorthShore appealed judgment for Schenk transferring certain mineral and inventory rights to Schenk and awarding Schenk attorney fees. The panel reversed and remanded. It held the provision providing for transfer of the mineral and inventory only applied in the event of failure to pay rent, failure to pay taxes or failure to maintain insurance as the provision only appears in the paragraphs dealing with those issues, there is a different provision for other breaches of the contract and forfeitures are disfavored at law and breaches found by the jury here, termination of different agreement and failure to allow inspections, did not trigger the transfer provision. The panel vacated the attorney fee award and remand for a new analysis reflecting the unavailability of the transfer remedy.

The Clifford P.D. Redekop Family, LLC v Utah County Real Estate, LLC

Family appealed summary judgment for Utah County in its negligence case. The panel affirmed. It held there was no abuse of discretion in the exclusion of Family’s expert witness and report as Family’s attorney intentionally failed to make timely disclosures, offered an excuse which did cover the relevant period and Utah County was prejudiced as a result. It also held that Family needed to present expert testimony as the measurement of rental space in a commercial building is beyond the common understanding of an average juror.

State v Plexico

Plexico appealed her witness tampering conviction. The panel affirmed. It held testimony from a witness that she told the police that Plexico hit Plexico’s boyfriend, that Plexico asked the witness to say Plexico did not hit her boyfriend and evidence that Plexico was aware she had been issued a summons for assaulting the boyfriend was sufficient to sustain the conviction. The panel also held that Plexico failed to marshal the evidence in her brief. The majority held that there was no error in excluding evidence that Plexico was acquitted of assault as that fact was irrelevant to any element of witness tampering. It finally held the jury instructions accurately stated the mens rea element and thus there was no error in giving them.

McCammon v Board of Pardons and Parole

McCammon appealed the denial of petition for post-conviction relief. The panel summarily affirmed holding it was within Board’s power to require McCammon to serve his life sentences and properly considered the sentencing presentence investigation in its decision-making.

State v Clark

Clark appealed her shoplifting conviction arguing error in admitting evidence about a charging decision in a prior theft trial. The panel affirmed holding any error was harmless given the unrefuted testimony that Clark entered a store she was banned from for life, put items in her purse and attempted to leave without paying for them and a defense witness described the activities which formed the basis for the earlier theft case.