Wasatch County v Okelberry

Wasatch sued Okelberry arguing certain roads on their property were dedicated to the public. After remand from earlier appeals, the district court refused to apply an amended version of the road dedication statute and found some, but, not all, the roads involved were dedicated to the public. The panel affirmed in part and reversed in part. It held that the amended version of the statute applied as it explicitly states it applies retroactively, the amendment merely clarified what the statue was always supposed to mean and the language relied upon by Okelberry did not exist at the time of the events in question. It held this significant change in controlling authority meant the mandate to the district court in this case was superseded and considering the issue of whether the acts of Okelberry actually interrupted public use was properly before the district court. It finally held there was no evidence the gates and locks used by Okelberry put the public on notice the roads were not for public use as witnesses testified the roads were available for use except for limited period to move livestock and thus there was no actual interruption of use. On cross appeal, the panel held the district court correctly ruled that the mere presence of gates is not sufficient to defeat a public dedication claim.

Todd Hollow Apartments at Deer Mountain, LP v Homes at Deer Mountain Homeowners association, Inc.

Hollow appealed the denial of its petition to remove liens placed on its property by Homes. The panel affirmed. It held that Hollow invited any error by the district court in ruling on whether or not Hollow’s purported withdrawal form Homes was valid as it raised the issue in the petition and assured the court that it could make the ruling on the issue. The panel held that under the terms of the development’s CC & R document, the developer lost the power to withdraw property from Home in 2005 and thus Hollow had no power under the assignment of rights from developer to withdraw Hollow from Home. Thus, the lien was valid.

State v Millet

Millett appealed his sodomy and attempted rape convictions arguing ineffective assistance of counsel. The panela reversed. It heled that the police officer who interviewed Millett failed to adequately inform Millet of his Miranda rights and there was no tactical reason not move to suppress the interview particularly as counsel tried to do so under the rules of evidence. The panel held the deficient performance was prejudicial because the alleged victim’s testimony was contradictory about whether Millett threatened to end their relationship, the interview provided evidence that he did and thus there is a likelihood a jury could acquit without the interview.

State v Flygare

Flygare appealed the denial of his motion for entry of satisfaction of the restitution order in his criminal case based on the 8 year limit on collection. The panel affirmed holding that Utah Code 77-38a-401 excludes criminal restitution judgments form the 8 year period and thus the restitution order here is not satisfied.

State v Lorenzo

Lorenzo appealed his convictions for reckless endangerment, reckless riving and driving with a suspended license. The panel affirmed. It held Lorenzo failed to preserve his challenges to reckless endangerment and reckless driving and further failed to argue that any exceptions to preservation were present. It affirmed the suspended license conviction noting that the only crime which could have resulted in an alcohol related suspension is DUI and thus the trial court properly inferred that fact from the record. The panel finally held that there was no ineffective assistance of counsel because any illegality of the initial traffic stop would not prevent prosecution of Lorenzo’s subsequent high speed chase and thus there was no prejudice.

State v Heywood

Heywood appealed his lewdness convictions arguing ineffective assistance of counsel. The panel affirmed. It held there was no need for an expert witness on problems with eyewitness identification as none of the problems with such testimony identified in the case law were present in this case and in any event there were only two possible perpetrators here and they did not look alike. It held there was no need for an eyewitness testimony instruction as it was less effective than an expert and there was no need for an expert here. The panel held there was no deficient performance in trial counsel’s decision to attack the lack of a photo lineup by cross examination rather than testimony on police policy as the salient facts were brought before the jury and there was a universe of two possible suspects. The panel held there was no need to file a motion to suppress Heywood’s statements to police as he was not under arrest and was interviewed at home for thirty minutes. The panel held there was no deficient performance in not resenting expert testimony on the use of the video game console in Heywood’s house as the use was conceded by the state at trial and the proffered evidence is consistent with the testimony offered at trial by the victim’s mother. As there was no error proven on appeal, the panel finally rejected Heywood’s cumulative error claim.

State v Martinez

Martinez appealed his aggravated assault and witness tampering convictions. The panel, with one judge adding a concurrence, affirmed. The panel held there was no abuse of discretion in denying Martinez’s mistrial motion as the two mentions of previous domestic violence were brief, lacked detail and were not mentioned in closing arguments. The panel held Martinez failed to preserve his sufficiency of the evidence challenge to his aggravated assault conviction and there was no ineffective assistance of counsel as the evidence was sufficient to send the aggravated assault count to the jury. The concurrence argued prior domestic violence evidence should always be allowed in domestic violence cases because it explains victim behavior such as failing to report an incident.

Fowler v Mark McDougal & Associates

Fowler sued her divorce attorney and McDougal alleging legal malpractice. The district court granted summary judgment to the attorney and McDougal. The panel affirmed holding fowler admitted being informed of statutory limits on alimony in the divorce proceeding and thus cannot claim malpractice based on failure to inform her of those limits.

State v Aleh

Aleh appealed his numerous convictions arising from the robbery of a female escort. The panel held the convictions cured any errors in denying Aleh’s motion to withdraw his waiver of preliminary hearing. It also held that the district court did not error in limiting cross examination of the escort because the run ins with undercover police officers reaffirmed that the escort acted within the law and facing death when a gun went off while struggling with Aleh is a more persuasive reason to quit escorting than an encounter with police that did not result in arrest let alone conviction.

High Desert Estates, LLC v Arnett

Desert sued to rescind a land sale contract with Arnett for mutual mistake. The district court granted judgment to Arnett after a bench trial. The panel affirmed. It held that the judgment was final and appealable as the entry of judgment implicitly overruled Desert’s objection to the order submitted by Arnett. It held the district court did not clearly error in finding Desert failed to prove building homes on the property involved was the primary purpose of the sale rather than access to an adjacent lot and thus judgment for Arnett was proper. The panel finally awarded Arnett attorney fees on appeal as prevailing parties.

State v Fretheim

Fretheim appealed the denial of his motion to suppress. The panel affirmed holding Fretheim voluntarily let the officers into his house and consented dot the search. It also held that there was no ineffective assistance as Fretheim’s statements after Miranda warnings were more incriminating that those made before eh warnings and thus there was no prejudice.

Carter v Landmark Testing & Engineering, Inc.

Carter appealed the denial of their motion to amend their complaint. The panel affirmed noting the new claims against Landmark were known several years before Carter obtained them through assignment and the district court was allowed to deny the motion for being untimely given the nearly four years between filing the case and the motion to amend and the three years when the assignor did nothing about pursuing the claims.

State v Lujan

Lujan appealed his battery conviction. The panel, 2-1, reversed and remanded for a new trial. The majority held that two identifications of Lujan by the alleged victim were improperly admitted as they were the result of suggestion or otherwise unreliable given the show up in front of a police car, the different races of Lujan and the alleged victim, the failure of the victim to pick Lujan in a lineup and the significant differences between the initial description of the perpetrator and Lujam’s appearance. The majority held the error was not harmless as the identification was the state’s strongest evidence and acquittal is a realistic probability given the weak remaining evidence. The dissent argued that the identifications were not the result of suggestion or otherwise unreliable as the victim saw Lujan from one foot away in an adequately lighted area, victim was focused on Lujan, there were no known impediments to victim’s capacity to observe, the show up took place 35 minutes after the event and the discrepancies here were less than those held reliable by the Utah Supreme court in the controlling case and the suggestive show up was only as bad as he show up found ok in that Supreme court case. All three judges called upon the Utah Supreme Court to revisit the law in the area of eyewitness identification.