Utah Court of Appeals affirms fraud conviction; delinquency adjudication based in part on hearsay; holds failure to intervene in administrative proceeding means no standing to appeal detrimental ruling; reversed assault and kidnapping conviction because of possibly erroneous district court answer to jury question; holds no evidence to support wrongful death claim means summary judgment for defendant; upholds sex abuse conviction; and issues three other decisions.

State v Hawkins

Hawkins appealed his communications fraud conviction. The panel affirmed. It held there was sufficient evidence to sustain the conviction as Hawkins falsely told the victim’s brother in law that a nonexistent trust would be supplying the purchase funds, that utilities were no problem despite knowing the infrastructure was incomplete, lied about the existence of an insurance policy to cover losses on sales of the real estate in question an had the victim sign a written disclosure which repudiated all the promises made during the negotiations and these facts allowed the inference that Hawkins, at least in part, planned , formed or invented the fraudulent scheme. It held that the evidence of the state proved active participation by Hawkins and thus the lack of a duty to disclose instruction was harmless. It held that Hawkins arguments about a lack of a fair trial were inadequately briefed, that he either waived or acquiesced in most of the delay in his trial starting and thus failed to state a speedy trial violation and that his motion for appointed counsel was properly denied as he made it on the first day of trial and did not follow proper procedures.

In the Interests of J.C. (J.C. v State)

J.C. appealed his delinquency adjudication. The panel, with one judge adding a concurrence, affirmed. It held that the admission of certain hearsay statements by fellow students was not plain error as trial counsel could have had valid reasons to not object as the state could have called the students first making the statements admissible as inconsistent prior statements, counsel could have been trying to minimize the evidence by not having the principal who relayed the statements testify last or he could have allowed the statements to come in in order to undermine the students in court testimony. The panel held that once the statements are considered, there was enough evidence to sustain the adjudication as an officer saw J.C. in a marijuana smoking ring and the students stated to the principal that J.C. smoked the marijuana. The concurrence argued any error in allowing the statements in was harmless as the state could have just changed the order of witnesses.

Utah Alunite Corporation v Jones

Jones as state engineer ruled that the Central Iron County Water Conservancy District had priority over Alunite in the waters of Wah Wah Valley. Alunite filed a notice of appeal. The panel dismissed holding that only aggrieved parties can seek review of final orders and Alunite failed to intervene or otherwise become a party to District’s proceeding before Jones and thus lacked standing to appeal.

State v Dozah

Dozah appealed his convictions for aggravated assault and aggravated kidnaping. The panel, with judge concurring in part and concurring in result in part, reversed and remanded for a new trial. The panel held there was no error in refusing to charge the coercion defense to the jury as there was no evidence Dozah participated in the taking of the victim to a deserted road, threatened him with a beating and leaving him in the cold because of any threat to Dozah as the only threat to Dozah was made when he tried to untie the victim and trying to beat a person in order to prevent a more severe beating is not within the scope of the coercion defense. The majority held there was error in the way the district court handled the jury’s questions of the elements of aggravated assault as the response could have been read to allow conviction based solely on leaving the victim in the cold by the roadside which is not legally sufficient. It held that the error could have lead to the conviction and thus the assault conviction must be set aside. It further held that because the kidnapping conviction was based on the assault. It held entry of a conviction for simple kidnapping was inappropriate as the issue of whether or not victim was detained for a substantial time was not submitted to the jury. The concurrence argued that the district court should have provided a correct supplemental instruction of whether leaving the victim on the roadside could sustain the assault conviction and errored by not giving that instruction.

Belnap v Graham

Belnap sued graham alleging wrongful death based on inadequate medical care to his wife. The district court granted summary judgment based on lack of admissible evidence of breach of care. The panel affirmed. It held that wife’s sateen that Graham did not examine her before discharge was hearsay, was offered several hours after the alleged event and was thus not a present sense impression and was not offered to get medical diagnosis. Thus, it was inadmissible. The panel also held that Belnap’s expert’s testimony on the lack of entry in of examination in the medical chart did not prove an exam was not done as it was not based on the actual practice of recordkeeping at the hospital where wife was treated. As there was no evidence to contradict Graham’s deposition testimony that he examined wife before discharging her, summary judgment was properly entered.

State v Gibson

Gibson appealed his conviction for aggravated sexual abuse of a child. The panel affirmed. It held that under Utah code 76-5-4-4.1, the state is required to prove a special relationship of trust to elevate the offense to a first degree felony, that the relationships listed in the statute are not exclusive and the state proved that Gibson had a special relationship to the victim as he gave permission for her to sleep over, brought her a blanket, gave direction to victim and other children during the night in question and trust was demonstrated when victim did not object to being touched, thought the first touching was inadvertent, agreed to not tell anyone and gave Gibson a hug goodnight. It held that there was no error in allowing a witness to testify who attended the preliminary hearing both because no exclusion order was entered at the hearing and there was no evidence the witness was influenced by the evidence presented at the hearing. It held the fact that the jury acquitted him on one count did not require the conviction to be vacated as the jury could have decided one touching was unintentional and there was no evidence of any additional error. The panel finally held that no jury charge for sexual battery was required as Gibson provided to law or evidence to show such an instruction was required.

Berg v Richards Brandt Miller Nelson

Berg appealed the order allowing Nelson to intervene to assert an attorney’s lien. The panel held that the order was interlocutory and dismissed for lack of jurisdiction.

Peterson v Labor Commission

Peterson appealed the denial of her workers’ compensation claim. The panel reversed. It held that the way Peterson was injured, reaching behind her in order to grab 16 pounds of cakes and trying to lift them over her head, was unusual and awkward and thus substantially increased the risk of injury to her shoulder above the risks faced in day to day life. And the injury to her shoulder was thus a covered injury and the case was remanded to calculate her award.

Evans v Huber

Evans appealed the summary judgment entered for Huber in his accounting suit. The panel affirmed holding Evans failed to provide any evidence in support of his arguments and that the expert report in the record supported judgment for Huber. It also held Evans’ arguments about amending his complaint and for a new trial were unpreserved.