State v Scott

Scott appealed his murder conviction arguing ineffective assistance of counsel. The panel, with two judges adding concurrences, reversed and remanded. It held Scott’s trail counsel performed deficiently by not arguing the threats by victim here were not hearsay as threats cannot be proven true or false and there was no possible tactical or strategic advantage to not making the argument. It held the deficient performance prejudicial as two jurors displayed confusion on the key issue extreme emotional distress not substantially caused by Scott’s actions and eth prosecution raised the issue of the victim not being a threat in his closing argument. Judge Voros added a concurrence arguing Utah law on extreme emotional distress should include a requirement of whole societal sharing to some degree in the rage offered as proof of extreme emotional distress and called upon the legislature to revise Utah Code 76-5-205.5 to prevent abusers from taking advantage of it. Judge Christiansen added a concurrence arguing that the extreme emotional distress defense should not have been availed here as Scott was an abusive husband and allowing the defense perpetuates notions of spousal control and legitimizes violence against women and thus called for 205.5 to be revised.

Vesey v Nelson

Nelson appealed the order denying her application for childcare expenses arguing the district court erred in applying laches to her claim. The panel, with one judge concurring in result, affirmed. The majority held that under Utah Supreme Court precedent and a prior appeal in this case, laches can apply even if a claim is timely under the statute of limitations. It held laches was properly applied here as waiting over a decade to sue prejudiced Vesey as he did not have the chance to object to the higher expenses and indeed never was informed that changing childcare providers would result in higher expense and Nelson was unable to prove the childcare costs due to passage of time. Judge Voros occurred in result arguing Nelson’s failure to notify Vesey of the increased child care expenses within 30 days provide a basis to bar her claim under Utah Code 78B-12-214 on the facts here.

Edwards v Carey

Carey appealed the denial of their motion to compel arbitration. The panel affirmed holding that the complaint here only alleges wrongdoing by Carey in the role of director not in the concomitant role as officer and thus the arbitration clause in Carey’s employment contract does not apply as it is limited to claims arising from acts as officer.

State v Ray

Ray appealed his forcible sex abuse conviction arguing ineffective assistance of counsel. The panel reversed and remanded. It held that trial counsel performed deficiently when he did not request that the term “indecent liberties” either be defined for the jury or removed from the instruction as that phrase has been held unconstitutionally vague. It held Ray was prejudiced by this failure because Ray was acquitted of object rape and at least one juror did not believe testimony that oral sex occurred and the victim had credibility issues due to inconsistent statements and testimony. It finally rejected Ray’s inherent improbability argument noting the doctrine only applies when testimony is impossible under the rules of physics or is patently false (such as claiming to be in a closet when there is no closet in the room) and here all that occurred is garden variety inconsistent stories.

State v Speed

Speed appealed the denial of his motion for relief from judgment and for a restitution hearing. The panel affirmed. It noted that review here is limited to the arguments made in support of Speed’s Rule of Civil Procedure 60(b)(4) motion as the time for direct appeal of the restitution order has long past. It held that the restitution order was not void for lack of jurisdiction because the sentencing judge orally ordered restitution at the sentencing hearing and further ordered Speed to immediately start paying it and failure to reduce that order to writing for over a year did not strip the court of jurisdiction as it was clerical error. It rejected Speed’s due process argument holding that Speed received constitutionally adequate notice of the restitution amount as it was in the presentence report and the amount was stated by the sentencing judge in its oral pronouncement and the sentencing judge offered speed the opportunity to file a motion for a hearing which speed did not do. It finally held that Speed’s ineffective assistance argument was unpreserved and in any event outside the scope of the appeal.

Specht v Big Water Town and Hyde

Specht appealed the denial of his summary judgment motion and the grant of Hyde’s motion in his challenge to the vacation of part of a cul-de-sac. The panel affirmed. It held the record demonstrated town’s board considered all five statutorily required conditions for a variance and made oral findings as to each condition. It held the five findings were supported by substantial evidence as Hyde’s lot was smaller than the normal lot in the zoning area, had access issues because Specht raised the level of the cul-de-sac after Hyde purchased it and with the variance Hyde could install a required septic system; that no other lot in the area need a variance for access or to install a septic system; that the Hyde’s lot has no rear neighbor and cannot be seen form the now elevated cul-de-sac; the health department stated it did not believe the variance would be a problem and the traffic and aesthetic concerns supporting a setback requirement were not implicated by the variance. It held that Specht lacked standing to challenge the vacation order as he did not suffer a special injury from the vacation and suffered no injury for the alleged failure to give notice as he attend the two hearings on the issue and gave testimony supported by documents an photographs at them.