State v Akok

Akok appealed his rape conviction arguing prosecutorial misconduct. The panel reversed and remanded for a new trial. It held the prosecutor’s call in rebuttal closing argument to protect eth victim from being victimized again in court was an improper appeal to emotion and it was prejudicial as the evidence was conflicting, Akok’s attorney never had a chance to respond and the district court inexplicably failed to issue a curative instruction about the prosecutor’s statement even though both sides stipulated to one.

State v Flores

Flores petitioned for rehearing of his Batson claims. The panel denied his pet ion holding the initial opinion appropriately analyzed the district court’s handling of the need to explore potential juror bias in favor of religious leaders and that the statement in the opinion that Batson claims are almost impossible to win on appeal was factually correct.

State v Jok

In this companion case to Akok, the panel held the prosecutor’s statement for the jury to not victimize the complaining witness again was misconduct and it was prejudicial fir the reasons outlined in the Akok opinion. The panel rejected Jok’s ineffective assistance claim holding that evidence of voluntary intoxication was inconsistent with the defense theory of no touching. It also rejected Jok’s claim his trial should have been severed, but, encouraged the district court to consider any new motion particularly as eh state did not differentiate between Akok, alleged to have had sex with victim, and Jok who was only alleged to have inappropriately touched her.

State v Kelson

After a remand from the Utah Supreme Court, Kelson argued the district court erred by not conserving certain documents at her sentencing hearing. The panel affirmed. It held Kelson was granted her right to allocate by speaking at length uninterrupted at the hearing and there was no error as to the documents as Kelson never presented them to the court and they were not relevant to the issues of her sentence.

State v Harvey

Harvey appealed the denial of his motion to withdraw his guilty plea. The panel affirmed. It held that the plea was knowing and voluntary as the district court and Harvey’s lawyer both advised him that a prison sentence was a possibility, Harvey’s factual misunderstanding of his criminal record is not a basis to withdraw and in any event the prison term was based on the violent nature of the crime and Harvey’s behavior after the pela including becoming a fugitive and not on his criminal history which did not trigger a presumed prison sentence. The panel also held that Harvey’s hostile relationship with his first attorney was not a ground to withdraw his plea and there was no error in the district court’s determination that Harvey was competent to plead guilty.

Davis v Department of Workforce Services

David appealed the denial of his application for unemployment benefits. The panel affirmed holding Department’s finding that Davis was terminated for good cause was supported by substantial evidence that she was told to not have accidents causing property damage and she had accidents with her truck causing damage. Under the applicable rule, Utah Administrative Code R994-405-202(2), the employer was only required to communicate its expected behavior, the behavior must damage employer’s legitimate interests and here the employer provided clear explanation by having a supervisor show Davis pictures of the damages caused by the first accident and telling her discipline could result if any further accidents occurred. The panel also rejected Davis’ argument that employer failed to follow progressive discipline holding Davis had 6 violations and was only terminated after receiving a warning.

Mitchell v Labor Commission

Mitchell appealed the denial of her application for worker compensation benefits. The panel affirmed. It held Commission’s finding that Mitchell had a preexisting shoulder injury was supported by the medical evidence in the record and that Mitchell failed to prove her actions of throwing a light rope towards a winding machine were unusual as they involved less exertion than moving full garbage cans or carrying a full suitcase which are usual activities as a matter of law.