Search

Michael W. Thompson appeals from his conviction on two counts of forcible sodomy, both first degree felonies. Among other things, he claims that he received ineffective assistance of counsel. Specifically, Thompson asserts that trial counsel failed to investigate or challenge the qualifications of the State’s rebuttal witness, failed to object to the witness’s testimony as improper extrinsic character evidence, failed to object to instances of prosecutorial misconduct, and failed to object to defective jury instructions. We agree that trial counsel performed deficiently in some respects and that but for counsel’s deficient performance, there is a reasonable probability that the outcome of the trial would have been more favorable to Thompson. Accordingly, we reverse and remand for a new trial.

Defendant Harman–Mont & Theda, Inc. (Mont & Theda) appeals from an order entered by the district court on September 25, 2012 (the Memorandum Decision). We affirm the Memorandum Decision to the extent it struck Mont & Theda’s motion for summary judgment and we decline to address those portions of the Memorandum Decision that are not ripe for appellate review.

Uintah County appeals from a district court order awarding expert fees, interest, and attorney fees to Dr. Mark Zelig. We vacate the judgment of the district court.

Westmont Mirador, LLC and Terry Foote (collectively, Westmont) challenge the district court’s award of only nominal damages to Westmont after the court determined, in the context of entering default judgment against defendants Joshua Miller and Brad Nelson, that certain online comments made by Miller and Nelson about Westmont constituted defamation per se. We affirm.

Appellant Daniel Painter appeals his conviction for aggravated assault, a third degree felony. We affirm.

Pursuant to a garnishment order obtained by plaintiff Enoch Richard Smith, the details of which are not relevant to the jurisdictional question before us, ASC Utah, Inc. (ASC) deposited with the trial court $200,000 that it owed to the Osguthorpes. When the Osguthorpes made full payment of the judgment against them and in favor of Smith, they moved to vacate the garnishment order. The trial court granted the motion. The court, however, determined that it would continue to hold ASC’s $200,000 pending the resolution of a separate case between ASC and the Osguthorpes. That dispute was resolved when the judge assigned to that case ruled that ASC owed no money to the Osguthorpes. The trial court here then granted ASC’s motion to return its $200,000. The Osguthorpes appeal the trial court’s decision to release the funds to ASC, arguing that the decision was incorrect under principles of res judicata and judicial estoppel.

Romie H. Miller III appeals the dismissal of his petition for a determination of factual innocence. We affirm.

Juana Mercado seeks judicial review of the Utah Labor Commission’s denial of permanent total disability benefits relating to her 2011 industrial accident. We uphold the Commission’s decision.

Paul Thomas appeals from a civil stalking injunction entered against him. We affirm the injunction, with two important clarifications.

Officer Brett Perez, a South Jordan City police officer, engaged in a high‐speed chase in May 2009. During that chase, Perez failed to activate his lights and siren while speeding and later failed to activate his siren while passing through a red light at an intersection. After reviewing the incident and three other disciplinary matters in Perez’s file—all from the preceding fourteen months—South Jordan Police Chief Lindsey Shepherd terminated Perez. The South Jordan City Appeal Board affirmed his termination. Perez seeks review of the Board’s decision. We decline to disturb that decision.

Stephen Rippey appeals from the district court’s order dismissing his petition for post-conviction relief. We affirm.

Robert Neil Weikert appeals the trial court’s order dismissing his petition for postconviction relief as untimely. This is before the court on its own motion for summary disposition based on the lack of a substantial question for review. Rather than filing a memorandum in response to the motion, Weikert filed a second docketing statement, which we construe as his response. The second docketing statement also fails to state a substantial issue for review warranting further proceedings by this court.

Galen Headley appeals from the district court’s Order on Motion for Delivery of Property wherein the court determined ownership of property and ordered Headley to transfer certain pieces of property to Diana Lynn Lohman, the personal representative of the estate of Rayma Lynnette Percell. We affirm.

Fox Construction, Inc., challenges the district court’s entry of summary judgment in favor of Taylor Electric, Inc., which required Fox Construction to pay Taylor Electric $12,000 pursuant to a settlement agreement between Fox Construction and Taylor Electric’s predecessor in interest. Key to the resolution of this appeal is whether the court erred in striking a transcript prepared by Nellyn Cox, the wife of Fox Construction’s president, Floyd Cox, which she appended to her affidavit submitted in support of Fox Construction’s memorandum in opposition to Taylor Electric’s motion for summary judgment. We review the court’s decision to strike the transcript for an abuse of discretion.

Defendant appeals the denial of his motion to withdraw a guilty plea, which was entered nearly fifteen years ago. The district court determined the motion to be untimely. We affirm.

Defendant Joseph Richard Skousen was convicted in February 2011 of failing to stop his vehicle at the command of a conservation officer, a class A misdemeanor. See Utah Code Ann. § 23‐20‐24 (LexisNexis 2010).2 At the close of the State’s evidence at trial, Defendant moved for a directed verdict, claiming insufficiency of the evidence. The trial court denied the motion, and Defendant was subsequently convicted. Defendant now appeals the court’s denial of his directed verdict motion. We affirm.

Rule 24 of the Utah Rules of Appellate Procedure contains several briefing requirements that exist to ensure an efficient appellate process. See Utah R. App. P. 24. While we avoid being so finicky as to summarily affirm because of comparatively minor deficiencies, there comes a point at which violations of the rule become too substantial to ignore. This is such a case.

Appellant Francis Argenziano (Intervenor) intervened in the divorce proceedings of appellees Micah Reller (Husband) and Karine Reller (Wife), in an effort to ensure that Husband is held to be the legal father of Wife’s child born during their marriage but actually fathered by Intervenor. We affirm the district court’s final divorce decree determining that there were no children born of the marriage.

On interlocutory appeal, plaintiff Buu Nguyen challenges the district court’s grant of summary judgment dismissing Intermountain Health Care (IHC), which operates Primary Children’s Medical Center (PCMC), from this action. The trial court held that PCMC did not have a separate and distinct legal duty to obtain Nguyen’s informed consent before using a sales demonstration ventilator on his critically injured son.

Ranae Nicol petitions for review of the Workforce Appeals Board’s (the Board) decision affirming the denial of benefits and finding that Nicol was discharged for just cause. We decline to disturb the Board’s decision.

Jeremy D. Penick appeals from a conviction of attempted murder, a first degree felony, see Utah Code Ann. § 76‐5‐203(2)(a) (LexisNexis Supp. 2012); id. § 76‐4‐101; id. § 76‐4‐102(1)(c)(i),1 arguing that his trial counsel was ineffective for failing to file a motion to suppress evidence that was obtained following what Penick characterizes as an illegal arrest. We affirm.

Defendant appeals his conviction and sentencing on two counts of aggravated sexual assault1 on the ground that the evidence at trial was inherently improbable. He also argues that he is entitled to be resentenced under the statutes in effect at the time of sentencing, and with this contention the State agrees.2 We decline to disturb the verdict but remand for resentencing.

Defendant Lynette Tibbets appeals her burglary conviction, see Utah Code Ann. 76‐6‐202(1)‐(2) (2008), alleging that the trial court abused its discretion in admitting certain evidence, see Utah R. Evid. 404(b); plainly erred in commenting about forthcoming evidence when responding to the jury’s question, see Utah R. Crim. P. 17(i), 19(f); and erred by denying Defendant’s request for a lineup. We affirm.

Scott Kenneth Steel (Husband) appeals the district court’s dismissal of a divorce petition without prejudice. Maria De Lourdes Steel (Wife) filed a motion to dismiss in the district court, and Husband failed to file a response. The district court dismissed the case without prejudice based upon the lack of response and further ruled that it lacked jurisdiction to determine child custody and related issues.

Defendant Brian Avery Smith appeals his convictions for possession of a controlled substance, a third‐degree felony, see Utah Code Ann. 58‐37‐8(2)(a)(i) (2012), and possession of drug paraphernalia, a class B misdemeanor, see id. 58‐37a‐5(1). He argues that the trial court erred by refusing to consider his motion to suppress evidence and by admitting evidence of a broken crack pipe, a twist of cocaine, and a related lab report without an adequate chain of custody. We affirm.

Shane O. Wood seeks review of an order of the Utah Labor Commission Appeals Board (the Board) denying his claim for workers’ compensation benefits. The Board’s order reversed an Administrative Law Judge’s (the ALJ) decision that Wood was entitled to benefits. We decline Wood’s invitation to disturb the Board’s order.

Plaintiffs Oscar Mercado and Maricela Quispe appeal from the trial court’s grant of summary judgment in favor of Defendants Lindsey Hill and Diamond Line Delivery System, the court’s denial of Plaintiffs’ motion for a new trial or to alter or amend the summary judgment in favor of Diamond Line, and the court’s denial of a motion to quash or withdraw admissions. We affirm.

Max Smith, individually and as trustee of the Smith Family Living Trust, appeals the trial court’s ruling partially denying his motion to set aside a sheriff’s sale of real property. Mike Meguerditchian, Smith’s judgment creditor and the purchaser of the real property, cross‐appeals the trial court’s granting of the motion with respect to water rights1 sold at the sheriff’s sale. We affirm in part and reverse in part.

Plaintiff appeals the sanctions imposed by the trial court for his multiple discovery violations during the time he acted as his own attorney. Plaintiff concedes that his conduct warranted sanctions but contests the severity of the sanctions imposed. We affirm.

Defendant Michael C. Martin entered a no contest plea to criminal mischief, see Utah Code Ann. 76‐6‐106 (2008), which the district court held in abeyance, see id. 76‐2a‐1 to ‐4. On appeal, Martin challenges the district court’s determination that he violated the conditions of the plea in abeyance and the court’s subsequent entry of his plea and imposition of sentence. See id. 77‐2a‐4. We affirm.

Azlen Adieu Farquoit Marchet appeals his conviction for two counts of aggravated sexual assault, first degree felonies, see Utah Code Ann. 76‐5‐405 (2003) (current version at id. § 76‐5‐405 (Supp. 2012)). On appeal, Marchet argues that he received ineffective assistance from his trial counsel, that the trial court erroneously admitted evidence of prior bad acts under rule 404(b) of the Utah Rules of Evidence, and that the trial court erroneously determined that exculpatory out‐of‐court statements Marchet made in a pretext telephone call were not admissible. We affirm.

Azlen Adieu Farquiot Marchet appeals from a conviction for rape, a first degree felony, see Utah Code Ann. 76‐5‐402 (2008). We affirm.

J.S.T. (Father) appeals the termination of his parental rights. Father does not challenge the sufficiency of the evidence to support any specific finding of fact, but he challenges the conclusion that the best interests of J.T. would be served by the termination of his parental rights. Father also contends that the juvenile court erred because he claims the grounds for termination were based only upon his failure to comply with a service plan. We affirm.

Grace C. Kelson appeals her convictions for one count of offer or sale of unregistered securities, a third degree felony, one count of sale by an unlicensed broker-dealer, agent, or investment advisor, three counts of securities fraud, second degree felonies, and one count of pattern of unlawful activity, a second degree felony. We vacate Kelson’s conviction for pattern of unlawful activity, and reverse and remand for a new trial on all other charges.

C.H. (Mother) appeals the termination of her parental rights in her children and the denial of her postjudgment motion. We affirm.

Maria Lewis seeks review of the final decision of the Workforce Appeals Board. Lewis asserts that the Board erred in determining that she quit her position without good cause, thereby making her ineligible for unemployment benefits.

H.K. (Mother) challenges the juvenile court’s termination of her parental rights. We affirm.

Appellant Richard T. Lamar (Husband) appeals from the divorce decree entered in this case. He claims that the district court erred by (1) ordering him to pay one half of a $4,999 judgment against Appellee Jodi A. Lamar (Wife), (2) entering insufficient findings of fact regarding Wife’s needs and earning capacity, (3) ordering Husband to pay a portion of Wife’s attorney fees, and (4) ordering Husband to repay Wife for her 2008 federal tax refund.

D.C. (Mother) appeals the termination of her parental rights. Mother asserts that there was insufficient evidence to support the grounds for terminating her parental rights as well as the juvenile court’s determination that it was in the best interest of the child to terminate Mother’s parental rights. We affirm.

S.B. (Mother) appeals the juvenile court’s termination of her parental rights in R.B. and J.B. (collectively, Children), arguing that the evidence was insufficient to support termination. We affirm.

Defendant Thomas J. Soules was convicted of one count of murder, a first degree felony, see Utah Code Ann. 76‐5‐203 (Supp. 2007) (current version at id. (Supp. 2012)); and one count of aggravated robbery, a first degree felony, see id. 76‐6‐302 (2003) (current version at id. (2008)). Soules asserts three challenges on appeal. We affirm.

Lynn and Eileen Harding appeal the trial court’s grant of summary judgment in favor of Atlas Title Insurance Agency, Inc. (Atlas Title); Randy Kidman; Dave White; Jeremy Larkin; and Scott Wilson (collectively, Atlas),1 in which it determined that the Hardings could not demonstrate the proximate cause element of the various causes of action without resorting to speculation. We reverse and remand.

Petitioner Nerim Jelashovic appeals the decision rejecting his claim that his trial counsel was constitutionally ineffective when he gave him incorrect advice regarding the deportation risks of his guilty pleas. Specifically, Jelashovic contends that his trial counsel did not provide adequate warnings as mandated by Padilla v. Kentucky, 130 S. Ct. 1473 (2010). We affirm.

Donald M. Hartle (Husband) appeals the divorce decree and supporting findings and conclusions entered in November 2011. More specifically, he challenges the trial court’s enforcement of a settlement agreement between him and Penny R. Hartle (Wife) that was incorporated into the decree. We affirm.

In February 2005, Plaintiffs, a group of present and former owners of dairy farms in Millard County, filed suit against Defendants, who own, operate, or manage the Intermountain Power Plant (IPP) in Millard County or its associated high voltage direct current transmission line. Plaintiffs alleged that stray direct current electricity had been traveling from some IPP source to Plaintiffs’ dairy farms, adversely affecting the health and productivity of their dairy herds.

Jeremy James Dykes filed a petition for interlocutory appeal seeking review of the denial of his motion to quash the information charging him with one count of theft by receiving stolen property, a third degree felony, see Utah Code Ann. § 76‐6‐408(1) (Supp. 2011) (defining theft by receiving); id. § 76‐6‐412(1)(b) (2008) (current version at id. (Supp. 2011)) (classifying the level of offense).1 We granted his petition, and on appeal, Dykes contends that the district court was required to dismiss the charge in accordance with the rule stated in State v. Brickey, 714 P.2d 644 (Utah 1986), because the State had improperly refiled a criminal charge that had previously been dismissed, thus violating his due process rights. We affirm.

Petitioner Soudabeh Darvish petitions for review of a decision of the Utah Labor Commission Appeals Board. The Board ruled that Darvish’s claim for retaliation based on national origin was legally unsupportable. We decline to disturb the Board’s ruling.

Mark D. Curtis seeks judicial review of the Workforce Board of Appeals’s (Board) June 29, 2012 decision. This matter is before the court on a sua sponte motion for summary disposition. We decline to disturb the Board’s decision.

The Crottses assert that the district court erred by declining to set aside the default judgment entered against them after the district court struck their responsive pleading.

V.M. (Mother) appeals the termination of her parental rights. Mother does not challenge the juvenile court’s determination that grounds for termination exist. Her only challenge on appeal is to the juvenile court’s decision that it was in C.C.’s best interest to terminate Mother’s parental rights and allow C.C. to be adopted. We affirm.