How Do You Like Them Appellates?

tag:blogger.com,1999:blog-194898062009-02-21T03:59:20.787-07:00How Do You Like Them Appellates?Case summaries and news from Utah's appellate courts.Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.comBlogger108125tag:blogger.com,1999:blog-19489806.post-1148578870513898152006-05-25T11:38:00.000-06:002006-05-25T11:41:11.176-06:00Sexually abused child cannot be called "the victim"

State v. Devey, 2006 UT App 219According to the court of appeals, when a defendant claims that no crime was committed, as in a rape case where the rapist claims it was consensual or that there was no intercourse, the State cannot refer to the complaining witness as "the victim." It violates the defendant's right to a presumption of innocence.Baloney.The State is entitled to present a theory of

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1148318724671869002006-05-22T10:47:00.000-06:002006-05-22T11:25:42.563-06:00Brigham City v. Stuart rev'd 9-0 by Supreme Court

Brigham City V. Stuart, 547 U.S. ___ (2006)The U.S. Supreme Court reversed the Utah Supreme Court in a 9-0 decision in the Brigham City case. The Court's opinion, Chief Justice Roberts writing, is short and very straightforward: The test for reasonableness under the Fourth Amendment is an objective one. "An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1147796209893017832006-05-16T09:30:00.000-06:002006-05-16T18:02:38.186-06:00Polygamous or plural marriages are forever prohibited

State v. Holm, 2006 UT 31The 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

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1147733722357298072006-05-15T16:31:00.000-06:002006-05-15T16:55:22.636-06:00CoA affirms domestic violence conviction

This was a train wreck of a domestic violence trial that ended up being a fairly straight forward appeal.State v. Atkin, 2006 UT App 155For five hours early Sunday morning, Atkin beat and terrorized his girlfriend in her apartment. He ripped the phone out of the wall when she tried to call for help and later forced her to drive him home from Brigham City to Logan. Atkin's girlfriend managed to

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com1tag:blogger.com,1999:blog-19489806.post-1147732110520595652006-05-15T16:28:00.000-06:002006-05-15T16:28:31.323-06:00

I'm not sure why this opinion was published, as it does not seem to resolve any important legal issues.Loose v. State, 2006 UT App 149Loose was convicted of sexually abusing his step-daughter. On direct appeal, the Utah Supreme Court affirmed his convictions over evidentiary challenges and a claim of newly discovered evidence. Loose then filed a post-conviction petition that ultimately resulted

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1147724702042768542006-05-15T14:06:00.000-06:002006-05-15T14:25:02.460-06:00Supreme court will issue polygamy decision tomorrow

The Utah Supreme Court is going to issue its opinion in State v. Holm tomorrow. Holm is a practicing polygamist and was cop. He was convicted of unlawful sexual activity with a 16 or 17 year old for marrying and cohabitating with a 16 year-old girl. The case was argued in February 2005.Holm has challenged the constitutionality of Utah's bigamy laws, and, unlike the Green case, his challenges are

Two amendments to the Utah Rules of Appellate Procedure have been proposed:URAP 04. Appeal as of right: when taken. Amend. Creates a procedure to implement the directive in State v. Manning, 2005 UT 61, 122 P.3d 628, allowing a criminal defendant to have appeal rights reinstated, when the defendant has been deprived of the an appeal.URAP 24. Briefs. Amend. Clarifies the briefs that are to be

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1145764255584513342006-04-22T21:39:00.000-06:002006-04-22T21:50:55.670-06:00It's ok to eliminate all reasonable doubt

State v. Halls, 2006 UT App 142In State v. Reyes, 2005 UT 33, the supreme court threw out the requirement from State v. Robertson, 932 P.2d 1219 (Utah 1997), that a reasonable doubt jury instruction require the prosecution to "obviate all reasonable doubt."Halls had a jury instruction that required the prosecution to "eliminate all reasonable doubt." He complained that the instruction was

Bluemel v. State, 2006 UT App 141Blumel pled guilty to having sex with her fourteen year-old foster son. She pled guilty and got sentenced to three concurrent prison terms of five years to life. She allegedly asked her attorney to file an appeal, but no appeal was filed. More than two years after sentencing, Bluemel got a new attorney and filed a post-conviction petition.The State moved to

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1145761416794675642006-04-22T20:58:00.000-06:002006-04-22T21:03:38.206-06:00City attorneys, read the traffic code

Orem City v. Martineau, 2006 UT App 136Martineau 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,

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1144703154481828002006-04-10T14:51:00.000-06:002006-04-16T18:08:04.960-06:00Perspective

Jeff Gray is the AAG who will argue the Brigham City case in the U.S. Supreme Court in two weeks, on April 24th. His reply brief is due this Wednesday.I caught him leaving work early today at 2:30 to go to his son's little league game. I believe he attends all of his son's games.In twenty years, his son may or may not remember that his dad argued in the U.S. Supreme Court, but I'm sure he will

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com1tag:blogger.com,1999:blog-19489806.post-1144561555841191232006-04-08T23:31:00.000-06:002006-04-08T23:46:03.046-06:00

Mark Duane Workman was my upstairs neighbor when I lived in Murray. I would never have pegged him for a car theif, or a stolen car reciever.State v. Workman, 2006 UT App 116Venue was proper in Utah county for Workman's theft by recieving conviction, even though Workman lived in Salt Lake County and the stolen item, a 1998 Mitsubishi Mirage, was stolen in Salt Lake County. The car was found by

Even though this case is really about summary judgment, I'm going to file it under Creditors and Debtors, cause this debtor deserves some attention for his creativity.Granite Credit Union v. Remick, 2006 UT App 115Remick got a loan from Granite secured by a 1997 Plymouth Voyager. When the loan became delinquent, Granite tried to repossess it. Before Granite could find the van, Remick had his

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1144424785684699242006-04-07T09:21:00.000-06:002006-04-07T09:48:06.336-06:00No standing to challenge sodomy and fornication laws.

Everybody knows that Utah’s sodomy and fornication statutes are unenforceable against consenting adults. But for some reason, Brian Barnard feels like he needs to challenge them anyway.D.A.R. v. State, 2006 UT App 114D.A.R sought an injunction preventing the State from enforcing its sodomy and fornication laws. He claimed that he had engaged in “private, noncommercial, consensual oral sex and

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143957547417248962006-04-01T22:50:00.000-07:002006-04-01T22:59:07.700-07:00Court’s memorandum decision, not its subsequent order, was final judgment for purposes of appeal

To appeal a district order, one must file a notice of appeal with thirty days of the final judgment. The thirty-day period is jurisdictional, and appeals are often dismissed for lack of jurisdiction on the ground that the notice of appeal was filed late. Sometimes a notice is late because a party chooses not to appeal and then gets buyer’s remorse. But often, the notice of appeal is late because

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143872247628876572006-03-31T23:12:00.000-07:002006-03-31T23:17:27.923-07:00CoA reverses grant of summary judgment in railroad asbestos case

Christiansen v. Union Pac. R.R. Co., 2006 IT App 117Christiansen worked for Union Pacific in 1951 installing and removing asbestos containing components. In 1995 he retired because of breathing problems and went on disability. Although he suspected asbestosis, doctors diagnosed him with congestion, pneumonia, and other non-asbestos related conditions. In 2002, Christiansen filed suit against

Looking for a law blog on a particular subject or jurisdiction? Check out "A Taxonomy of Legal Blogs" over at 3L Epiphany. He lists HDYLTA and State of the Beehive under the Utah category of State Blogs.Hat tip: Charlie FosterAlso, check out Blog Fantasy Trading. It's a fantasy stock market for blogs where value is determined by incoming links. Sadly, this poor blog isn't worth much. But Ethan

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143561327128640912006-03-28T08:38:00.000-07:002006-03-28T08:55:27.833-07:00Live audio!

The court of appeals and supreme court have started live streaming oral arguments.Supreme court streaming audioCourt of appeals streaming audioThe supreme court has actually been streaming successfully for a couple of months now, but hasn't publicized it. The supremes have also posted archives of old arguments back to February of 2004.The court of appeals tried unsuccessfully to stream for the

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143560089366900252006-03-28T08:13:00.000-07:002006-03-28T08:34:50.333-07:00Some road in the middle of nowhere in Tooele County is a public road

State v. Six Mile Ranch Co., 2006 UT App 104The defendants petitioned the county to abandon a road on Stansbury Island. The county granted the petition, but failed to send written notice to the State, which owned property that abutted the road. The State filed suit to have the abandonment nullified.The trial court granted summary judgment to the State, ruling that the road was a public

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143556199615297172006-03-28T07:29:00.000-07:002006-03-28T07:30:00.180-07:00Counsel need not second guess client’s decision not to appeal

Schultz v. State, 2006 UT App 105Once a client says he does not want to appeal an adverse ruling, his attorney has no duty to file a notice of appeal or even to check back with the client to make sure he hasn’t changed his mind.The client in this case was mentally impaired, but found competent to stand trial. He later claimed that his attorney never explained his right to appeal. The attorney

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143212000864972392006-03-24T07:52:00.000-07:002006-03-24T07:53:20.960-07:00UDOT’s use of orange barrels during construction rather than concrete barriers was not a discretionary function

Johnson v. Utah Dep’t of Trans., 2006 UT 15Johnson sued UDOT for injuries resulting from an auto accident in a construction zone on I-15. The accident occurred, in part, because UDOT used orange barrels to mark the construction zone rather than concrete barriers.Both parties agreed that UDOT’s action qualified for blanket immunity under the Governmental Immunity Act but that section 63-30-8

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1143177556549174622006-03-23T22:00:00.000-07:002006-03-23T22:19:21.833-07:00Consumption of drugs does not include metabolizing

State v. Ireland, 2006 UT 17Utah’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

The High Court's latest search case, Georgia v. Randolph, portends well for the State in Brigham City v. Stuart. Randolph holds that a physically present co-tenant may override another co-tenant's consent to a warrantless search. The dissent raised concerns about the effect of this decision on domestic violence prevention. The majority countered:No question has been raised, or reasonably could be

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142918433779839272006-03-20T22:04:00.000-07:002006-03-20T22:20:33.940-07:00Appellate practice luncheon at the bar

The Appellate Practice and Litigation sections of the bar are sponsoring a luncheon with a panel discussion by judges and staff from the court:"BEHIND-THE-SCENES AT THE APPELLATE COURTS"Panel discussion pitched at all levels of appellate experience on the behind-the-scenes operation of Utah's appellate courts. Topics will include the following: scope of staff attorneys' work; decision-making

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0tag:blogger.com,1999:blog-19489806.post-1142917328938786802006-03-20T21:52:00.000-07:002006-03-20T22:02:09.100-07:00District court may not enter damages judgment for underlying claim at contempt hearing

Homeyer v. Stagg & Assoc., 2006 UT App 89Homeyer violated a court order and was held in contempt. At the contempt hearing, Judge Lewis took evidence regarding the underlying claims. At the conclusion of the hearing, she held Homeyer in contempt, put him in jail for thirty days, and entered a final judgment for damages against Homeyer in the underlying suit.The court of appeals affirmed his

Matt, Rach, Samus, Little-O, & Hank the Tankhttp://www.blogger.com/profile/07966060151211360525noreply@blogger.com0