Monday, January 23, 2006

Criminal Law

State v. Holm, 2006 UT 31

The Utah Supreme Court affirmed Rodney Holm's convictions for bigamy and unlawful sexual activity with a minor. The opinion is eighty-five pages with a dissent from Durham and a concurrence, responding to Durham's dissent, from Nehring. Durrant wrote with Wilkins and Parrish joining.

In brief, the majority held the following:

(1) The term marry in the phrase "purports to marry another" in the bigamy statute is not limited to State sanctioned marriages:

The crux of marriage in our society, perhaps especially a religious marriage, is not so much the license as the solemnization, viewed in its broadest terms as the steps, whether ritualistic or not, by which two individuals commit themselves to undertake a marital relationship . . . The fact that the State of Utah was not invited to register or record [Holm's marriage] does not change the reality that Holm and Stubbs formed a marital bond and commenced a marital relationship.
(2) Bigamy in any form is not protected by the Utah Constitution. The irrevocable ordinance, Art. 3 section 1, specifically prohibits the practice of plural marriage. The only plausible interpretation of that article that is consistent with the history of the Utah Constitution is that the framers intended to prohibit not just state sanctioned plural marriage, but plural marriage in practice.

(3) Utah's bigamy law does not violate the free exercise clause of the United States Constitution. Reynolds v. United States, 98 U.S. 145 (1879), which upheld a criminal polygamy prosecution in Utah against a free exercise claim, is still good law. The U.S. Supreme Court has never overturned it and has, in fact, cited it with approval in several modern free exercise cases.

(4) There is no fundamental liberty interest under Lawrence v. Texas, 539 U.S. 558 (2003), to engage in the type of polygamy involved in this case. Lawrence is limited to "private and intimate acts engaged in by consenting adult gay s and lesbians." Polygamy, on the other hand, "implicates the public institution of marriage."

(5) The bigamy statute does discriminate against religion in violation of the Equal Protection Clause. The court reaffirmed its holding in State v. Green that the bigamy statute is both facially neutral as to religion and has no discriminatory intent towards religion. The court pointed out, interestingly, that in 1988 an equal protection challenge was unsuccessfully brought against the bigamy statute on the ground that it was only used to prosecute non-religious polygamists.

(6) The bigamy statute does not infringe on Holm's right to association because (a) there is no fundamental right to engage in polygamous behavior, and (b) living a polygamous lifestyle is not necessary to associate with those who espouse polygamy.

(7) The bigamy statute is not unconstitutionally vague. "[W]e are at a loss to comprehend how Holm can plausibly argue that he did not purport to marry Stubbs when he participated in a marriage ceremony with her an subsequently engaged in a relationship that mirrored that of a traditional marriage."

(8) Testimony regarding the "social history and health of polygamous communities" was not relevant to the question of whether Holm committed bigamy.

(9)The trial court had jurisdiction over the charge of unlawful sexual conduct with a minor. The court clarified that this issue is properly raised only after the bindover and is a question of law for the trial court to decide, not a question of fact for the jury.

(10) The unlawful sexual conduct with a minor statute does not, by incorporating an exception for married couples, violate the Equal Protection Clause. The court determined that the State has a sufficient interest in regulating sex with minors to distinguish sex with a minor and sex with a minor spouse. "While the State's power to interfere with the private relationships of consenting adults is limited, it is well established that the same is not true where one of the individuals involved in the relationship is a minor."

Orem City v. Martineau, 2006 UT App 136

Martineau was caught crossing the “gore,” i.e. the painted area separating the freeway and the freeway off-ramp. Orem City charged first Martineau with improper lane use. Then, just before trial, the City amended the charge to failure to obey a traffic device. The trial judge convicted him in a bench trial of the second offense.

Unfortunately for Orem City, neither of those offenses really fit the facts. While arguably the gore is a traffic control device, there is a more specific statute that governs crossing the gore: 41-6-63.3 (now 41-6a-713). But since Orem never charged Martineau with that statute, the court of appeals reversed his conviction. The court relied on a well known principle of statutory construction that a more specific statute governs over a more general statute.

State v. Ireland, 2006 UT 17

Utah’s drug possession statute defines “possession” as “ownership, control, occupancy, holding, retaining, belonging, maintaining, or the application, swallowing, injection, or consumption . . . of controlled substances.” The State charged Jeffery Ireland with unlawful possession or use of meth and marijuana because his blood tested positive for those substances. The State argued that “consumption” included metabolizing the controlled substance. The supreme court disagreed and held that under the doctrine of ejusdem generis, the word consumption was limited to ingesting drugs. It concluded that Utah lacked subject matter jurisdiction over Ireland because there was no evidence that he “possessed” the drugs in Utah.

State v. Winfield, 2006 UT 5

While the standard of review for an unpreserved sufficiency claim is already well settled-law, see State v. Holgate, 2000 UT 74, the court clarified that a challenge to the bindover does not preserve a challenge to the sufficiency of the evidence at trial.

State v. Nieberger, 2006 UT App 5
State v. Draper, 2006 UT App 6

Both cases involve challenges under the child endangerment statute (76-5-112.5). Nieberger upholds the constitutionality of the statute against a vagueness challenge and affirms the trial courts bindover order. Draper reverses the trial court’s bindover order.

Both Nieberger and Draper are mothers who were busted for exposing their children to drugs and paraphernalia, although in different ways. Nieberger had drugs and drug paraphernalia scattered all over the house. Draper smoked pot and later breast-fed her six-month-old child.

The court of appeals held that the term “exposed to” in the child endangerment statute was not vague as applied to Nieberger because the common and ordinary meaning of the word exposed includes “to show publicly, to display.” Thus, by leaving drugs and paraphernalia around the house, Nieberger “exposed” her children to drugs.

Draper, on the other hand, did not necessarily expose her child to drugs. The court explained that feeding your child drug-contaminated milk would constitute exposure under the statute. But the state failed to present any expert testimony that marijuana passes through the mother’s breast milk to the child.

For anyone who has nursed a child (or for men, had a child that was nursed), you know that pretty much whatever the mother eats passes through the milk to the child (think Napoleon Dynamite: “This tastes like the cow got into an onion patch.”). But the court decided that “the question as to whether marijuana was actually present in Draper’s breast milk when she nursed her infant appears to be of sufficient complexity as to be beyond the realm of common experience.” So it reversed Draper’s bindover because “the State did not present any expert testimony at the preliminary hearing that marijuana can contaminate breast milk, of the degree or duration of that contamination, or whether the mild would be contaminated with a controlled substance or merely the metabolite of a controlled substance.”


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