State v Bruun and Diderickson

Brunn and Diderickson appealed their theft and racketeering convictions and the restitution portion of their sentences. The panel affirmed. It held the operating agreement of the limited liability company that Brunn and Diderickson drew check’s from the company checking account did not unambiguously authorize payments for expenses unrelated to developing victim’s property as some of the agreement’s provisions seem to allow any development of real property and payment of any managerial expenses and others seems to limit the company’s purpose to developing victim’s land and limit the managerial expenses to nonsignificant amounts and thus the issue of whether the checks were authorized was a jury question. The panel held Brunn and Diderickson’s jury instructional argument was unpreserved and there was no plain error as the defendants’ did not identify any duty of the district court to identify contractual ambiguities for the jury. It held defendant’s argument that the limited liability act authorized the expenditures here was unpreserved and further held the defendants’ failed to prove plain error or ineffective assistance of counsel because the act did not unambiguously authorize the actions here particularly as courts construing the act are to avoid interpretations which are not grounded in the fundamental purpose of preserving the right to contract as the members wish in the operating agreement. It held that under Utah Code 76-6-402, the fact the defendants had some interest in the funds taken by issuing the checks was no defense as victim’ and the limited liability company itself had interests in the moneys taken especially as the operating agreement and act both limited defendants’ interest to participation and a  claim on profits. It held that there was no error in not instructing the jury about the lesser-included offense of misappropriation because defendants’ attorneys withdrew the request for the jury instruction and pursuit of an all or nothing strategy was plausible under the circumstances of this case. It affirmed the racketeering conviction holding there was no plain error or ineffective assistance of counsel when defendants’ attorneys did not make the argument that unlawful conduct must last at least a year to qualify as the pattern of unlawful activity as there was no Utah precedent adopting that rule and it was not obvious that the district court should have looked to federal RICO precedent and adopted the rule on its own given the Utah Supreme Court has declared Utah is not obligated to follow federal law in deciding Utah racketeering cases and federal law is not uniform on the issue in any event and the jury instruction here was adequate even though it I not define “substantial period” as the definition of substantial would still have left it to the jury to decide if the nine month period here was substantial or not. It finally affirmed the restitution order as Utah Supreme Court Laycock precedent holds civil releases do not bar criminal restitution and held the defendants failed to engage the district court’s reasoning in setting restitution at the value of 12 checks the jury found were theft and in any event the district court’s reasoning was sound as the parties offered insufficient evidence as to the value of victim’s real property to include it in the calculation and rejected a cumulative error argument there were no proven errors in this appeal.

State v Rust

Rust appealed his drug conspiracy, money laundering and fraudulent tax return convictions. The panel affirmed. It held there was sufficient evidence to support the convictions as witness testimony about Rust’s drug dealing with her boyfriend was not inherently improbable as the factors cited by Rust, such as witness being high during the events in question, go to weight and there was corroborating circumstantial evidence  such as wire transfer receipts, vehicle traffic by rust’s house where the occupants had methamphetamine after leaving the house and owe sheets found in Rust’s house and car; the same evidence that supported Rust’s drug conviction also supported the money laundering conviction; and evidence Rust earned money dealing drugs and took steps to hide it supported the fraudulent tax return convictions. It also held that there was no plain error in allowing an expert to testify certain activities were money laundering given the conviction for drug conspiracy required the jury to find knowing involvement which is sufficient to conclude Rust knew the moneys received were drug funds independent of the expert’s testimony.

State v Yalowski

Yalowski appealed his burglary and other convictions. The panel affirmed. It held that the district court did not abuse its discretion when it denied Yalowski’s mistrial motion because the improper testimony about past violence between Yalowski and victim was not elicited by the state, was very brief, was not emphasized during the trial, victim’s testimony was directed other areas and the evidence aside from the statement was sufficient to convict. It found no abuse of discretion in limiting cross examination of victim because Yalowski was allowed to attack her credibility with an example of lying, the excluded examples were either not as recent or was an arrest which did not result in charges and there was significant evidence from witnesses whose credibility was not challenged that support the verdict. It held there was no error in admitting forensic evidence about shoeprints found outside the house because the comparison of the prints and the shoes seized from Yalowski was proper lay opinion evidence and near identical comparison evidence was introduced through another witness and Yalowski did not object to that testimony. It finally held the lack of harmful error meant there is no cumulative error.

State v Vu

Vu appealed his drug and firearm convictions. The panel affirmed. It held there was no plain error and no ineffective assistance of counsel in trying the drug and firearm charges together as Utah case law does not require it and the stipulation as to Vu’s restricted status meant the jury never learned about his prior felony conviction and any deficiency in preface was harmless given the overwhelming evidence of guilt and the jury’s careful consideration of the evidence as shown by Vu’s acquittal on one count. It held there was no error in admitting evidence of other controlled buys of methamphetamine as it was admitted for the permissible purpose of proving the drug charge. It finally held the evidence was sufficient  to convict given testimony that Vu stayed in the apartment in question, evidence form a tracking device that the car he used was at that apartment complex most nights, evidence that a distributable amount of methamphetamine was found near Vu during execution of  a search warrant as well as mail and identification in the room and evidence from the confidential informant that she saw the gun here in a certain place in the car during a controlled buy and officers located the firearm in that location during their search of the car.

State v Cowlishaw

Cowlishaw appealed his kidnapping failure to stop and theft convictions. The panel affirmed. It held that direct identification by victim was not required here as circumstantial evidence was presented the Cowlishaw committed the kidnaping and failure to stop including partial name given by victim, full name by victim’s stepfather, and evidence victim and stepfather knew Cowlishaw from visits to stepfather’s home . It affirmed the theft conviction holding evidence that the car’s license plate belonged to owner, owner identified the car’s appearance model and color  consistent with photos of the recovered car and defense counsel’s admission the car was stolen was sufficient to establish ownership of the car and there was no need for owner to identify Cowlishaw as he was seen by a police officer driving the car, his fingerprints were found in and on the car and there was no suggestion that someone lese stole the car.

State v Thompson

Thompson appealed his murder and assault convictions. The panel affirmed. It held there was no error in admitting texts between Thompson and a  woman who was not his wife as it was relevant to the element of knowing action and to Thompson’s voluntary intoxication defense and there was other evidence of Thompson’s character admitted into evidence including the fact he assaulting a different woman who was holding his child, the fact he cursed emergency responders who sought to help him and ramming a car while laughing about it thus there is little chance that any prejudicial nature of the texts outweighed the probative value of the texts as to Thompson’s state of mind. It held that the evidence was sufficient to support the murder conviction as a jury could find that driving drunk in a large truck going highway speeds on surface roads and accelerating through a red light demonstrated a complete and total disregard  as to whether his conduct was creating  risk of death and a callousness toward the value of human life;  drunk driving a large truck through a red light at highway speeds into a busy intersection created a grave risk of death; and there was evidence that while Thompson was drunk, he was aware of his actions and knew their consequences including stopping a stop sign as he left the scene of his beating his wife and another woman, driving  toward and stopping before striking a car while pointing at the car and smiling, making several turns including a 90 degree turn while driving towards the intersection and the fact he was able to carry out a coherent text conversation three hours before the collision.

State v Irey

Irey appealed his prison sentence. The panel affirmed holding that while remand was necessary to correct inaccuracies in the presentence investigation, there is no evidence in the record that the sentencing judge relied on the misinformation and there was no proof of an inherently unfair sentence given the significant property damage here from Irey’s lab causing a fire and Irey’s threats to another drug dealer with a firearm and mere disagreement with the weighing of factors is never enough to prove abuse of discretion.

State v Minter

Minter appealed her assault conviction. The panela affirmed holding the jury could rationally reject self-defense by concluding Minter did not reasonably believe that force was necessary here to protect herself or her daughter.