Utah Court of Appeals holds discovery violations at theft trial should have resulted in mistrial; upheld the approval of a new water diversion point to support operation of a nuclear power plant; rejects gross negligence claim; rejects prisoner’s extraordinary relief petition; holds robbery convictions for trying to steal the car and succeeding in taking a purse from the car must merge; and issues three other decisions.

State v Draper-Roberts

Draper-Roberts appealed her theft conviction arguing one of her motions for mistrial should have been granted. The panel reversed and remanded for a new trial. It held the district court erred in denying a mistrial for discovery violations as the state did not provide the arresting officer’s body cam footage, the footage contained potentially excludable events such as Draper-Roberts invoking her right to silence, the footage contradicted the arresting officer’s testimony on at least two material points, Draper-Robert’s attorney lost credibility by not mentioning the footage in opening argument and was deprived the opportunity to prepare for trial in light of the footage. It held a second discovery error should have led to a mistrial le as the witness involved was not disclosed until after opening arguments, she was the only source of evidence of the intent to deprive element and had a felony record which could have been used for impeachment. It held not requiring a witn4ess who was present in the courtroom to testify was error as it was based on a deadline imposed by the district court and compounded the other errors. The panel held the three errors prejudiced Draper- Roberts as her attorney made an opening statement based on the discovery provided which was significantly different from the evidence actually put on by the state and thus undercut his credibility with the jury, the body camera footage put improper evidence before the jury and the only evidence of intent was provided by a witness who was not disclosed. Thus, the panel’s confidence that Draper-Roberts received a fair trial and a new trial was the only way to remedy the error here.

HEAL Utah v Kane County Water Conservancy District

HEAL appealed the approval of District’s change of diversion point for withdrawing its water from the Green river to facilitate the construction and operation of nuclear power plant. The panel affirmed. It held the district court did not clearly error in concluding there is enough water not being utilized in the Green River to allow the withdrawal of District’s proposed diverted withdrawal point as the total beneficial us of the river is less than Utah’s share of the water as set out in the Colorado River compact and there are no restrictions which would bar the withdrawal. It held that HEAL failed to provide factual or legal argument is support of its argument the diversion would unreasonably harm the environment and thus held HEAL failed to demonstrate error in the district court’s finding of no unreasonable impact. It finally held that there was no clear error in the district court’s determination that the proposed use was feasible as the land in question was suitable for a nuclear power plant, the plant would provide needed electricity without carbon emissions and the plan was concrete setting out a path to build and operate the plant.

Penunuri v Sundance Partners, Ltd.

Penunuri appealed summary judgment on her gross negligence claim. The panel affirmed. It held the district court correctly applied the summary judgment standard for gross negligence by treating the grounds of a standard not fixed at law and only one conclusion to be drawn as disjunctive tests and there was no erroring ruling that the facts here only support the conclusion that no gross negligence occurred. The panel held that the evidence demonstrated the guide here exercised some care by giving instructions on riding horses, going slow for Penunuri’s benefit and preparing to stop at an appropriate spot to tend to Penunuri and her child. It finally upheld the award of deposition costs to a defendant as the depositions of Penunuri and two other witnesses were done in good faith to establish the summary judgment facts and thus used them in meaningful way justifying the award.

Williams v Department of Corrections

Williams appealed the dismissal of his petition for extraordinary relief. The panel affirmed. It held that the claims involving contract attorneys that Department retained were properly dismissed because the attorneys had no obligation to assist Williams as Williams did not provide any documentation of the factual basis of his claims, Williams was not entitled to legal assistance to pursue his freedom of information action, did not prove a conflict of interest which would entitle him to a different attorney and there was no error in the district court relying on documents attached to pleadings in the case to dismiss the claims. It held the claims involving Williams’s prisoner trust fund were properly dismissed because no statute required the fund be put out to bid. It held Williams’ motion to disqualify the attorney general’s office was correctly denied as Williams’ attorney reviewed the materials seized by Department and determine none of them were privileged and thus there was no breach of confidentiality. It finally held that Williams failed to identify his costs for a previous appeal and thus there was no error in not awarding them to him.

State v Bell

Bell appealed his two aggravated robbery convictions. The panel affirmed one conviction and reversed the other. It held that only one robbery occurred under Court of Appeals precedent when Bell entered a car and used a knife to threaten the owner then took the purse and ran off as the precedent held robbing a store clerk and taking their car was one robbery. It held Bells’ attorney was ineffective for not arguing for merger of the convictions as it was neither inconsistent with the argued defenses and there was no possibility of prejudice. Thus, the two convictions for taking the car and taking the purse form the car had to merge. It held that the fact Bell was unable to start the car with the keys to a different car he found inside did not make the robbery factually impossible as the robbery statute only requires an attempt and Bell believed he had the correct keys which could have started the car which is a sufficient factual basis to sustain the conviction. It finally held the district court correctly denied Bell’s directed verdict motion as there was no evidence that Bell’s voluntary methamphetamine intoxication made Bell incapable of forming intent to steal.

Padilla v Board of Parole and Probation

Padilla appealed summary judgment to board on his petition for extraordinary relief when Board revoked his parole and ordered him to serve the full term of his sentence. The panel summarily disposed of the appeal holding the Board’s decision was unreviewable and Padilla waived his argument that sex offender treatment should not be part of his parole when he admitted violating the condition.

State v Crippen

Crippen appealed his sodomy convictions arguing the victim’s testimony was inherently improbable. The panel affirmed. It held the victim’s testimony was not inherently improbable as it was corroborated in part by Crippen’s admission the oral sex occurred and his description of the events was similar to that of the victim. It held no reversal was necessary here based on victim’s testimony that she suffers from seizures as that was not prejudicial as it came in the context of why she didn’t have driver’s license and the district court gave a curative instruction or based on her testimony that she had been raped before as she did not refer to Crippen nor could any inference Crippen did the prior rapes be drawn from the statements.

Ha v Trang

After a settlement agreement was upheld on remand of the original appeal, Ha filed a supplemental brief arguing certain claims were not mooted by the agreement. The panel affirmed the judgment. It held the claim that a party to a redemption agreement should have been added as a party was moot as the shares in questions have been redeemed. It held the request for special shareholder meeting was not moot, but, failure to order one was harmless as an annual meeting was ordered and in any event the issue was inadequately briefed. It finally held that Ha failed to preserve the issue of mediation costs.