State v. Hart , 2012 UT App 78 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100540‐CA
)
v. ) FILED
) (March 22, 2012)
Creighton Hart, )
) 2012 UT App 78Defendant and Appellant. )
‐‐‐‐‐
Third District, Salt Lake Department, 081900710
The Honorable Randall N. Skanchy
Attorneys: Jeremy M. Delicino, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges McHugh, Voros, and Christiansen.
CHRISTIANSEN, Judge:
¶1 Defendant Creighton Hart appeals the trial court’s denial of his motion for a
directed verdict. We affirm.
¶2 After a two‐day trial, the jury found Hart guilty of ten counts of violating a
protective order. See Utah Code Ann. § 76‐5‐108 (2003) (current version at id. (2008)).
At the close of the State’s evidence, Hart moved for a directed verdict on all counts,
arguing that the State presented insufficient evidence to establish all of the elements of
the protective order statute because the protective order did not indicate, and the State
failed to introduce any other evidence to demonstrate, that it was issued under one of
the statutory provisions listed in section 76‐5‐108(1). See id. § 76‐5‐108(1) (“Any person
who is the respondent or defendant subject to a protective order . . . issued under Title 30,
Chapter 6, Cohabitant Abuse Act, or Title 78A, Chapter 6, Juvenile Court Act of 1996,
Title 77, Chapter 36, Cohabitant Abuse Procedures Act, . . . who intentionally or
knowingly violates that order after having been properly served, is guilty of a class A
misdemeanor, except as a greater penalty may be provided in Title 77, Chapter 36,
Cohabitant Abuse Procedures Act.” (emphasis added)). The trial court denied Hart’s
motion, reasoning that the question of whether the protective order was issued under
one of the listed statutory provisions is not an element of the offense of violating a
protective order. The trial court consequently did not reach the question of whether the
State presented sufficient evidence to demonstrate that the protective order was issued
pursuant to one of the listed statutory provisions.
¶3 Both in his motion for a directed verdict and in his argument on appeal, Hart
frames his issue as one based on the sufficiency of the evidence presented at trial. Hart
thus only briefly discusses whether issuance of the protective order under one of the
listed statutory provisions is an element of the offense of violating a protective order,
and then proceeds to discuss his insufficiency argument.1 The State responds that even
if the jury was required to determine whether the protective order was issued under
one of the listed statutory provisions, the State presented sufficient evidence at trial to
survive a motion for a directed verdict. We follow suit and assume, without deciding,
that issuance of the protective order pursuant to one of the statutory provisions is an
element of the offense. We therefore review the denial of Hart’s motion for directed
verdict based upon the sufficiency of the evidence presented at trial, and “will uphold
the trial court’s decision if, upon reviewing the evidence and all inferences that can be
reasonably drawn from it, we conclude that some evidence exists from which a
1
At oral argument, again assuming that the State was required to prove that the
protective order was issued under one of the listed provisions as an element of the
offense, Hart argued for the first time on appeal that the jury was improperly instructed
as to this element. We decline to address this issue. See generally State v. Marble, 2007
UT App 82, ¶ 19, 157 P.3d 371 (declining to address the merits of the defendant’s
argument where he failed to raise it in his brief).
20100540‐CA 2
reasonable jury could find that the elements of the crime had been proven beyond a
reasonable doubt.” See State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183.
¶4 In explaining that his marshaling duty was not triggered, Hart states that “there
were no facts presented from which a trier of fact could have concluded that the” State
had established that the protective order had been issued under the statute. Hart
contends that “the protective order itself contain[ed] no indication of the statute under
which it was issued.”
¶5 Here, “some evidence exists from which a reasonable jury could find,” see id.,that the protective order in this case was issued under one of the provisions listed in
section 76‐5‐108(1). The Third Judicial District Court issued a protective order against
Hart on March 21, 2007. Contrary to Hart’s contention, the protective order itself cited
Utah Code section 30‐6‐4.2 after stating that “[t]he [c]ourt reviewed the [r]equest for
[p]rotective [o]rder,” “received argument and evidence,” and “ma[de] the orders
initialed below.” See generally Utah Code Ann. § 30‐6‐4.2 (2007) (current version at Utah
Code Ann. § 78B‐7‐106 (Supp. 2011)).2 The district court judge initialed, thus
authorizing, a “Personal Conduct Order,” a “No Contact Order,” and a “Stay Away
Order.” Moreover, the protective order stated that Hart “must obey all orders initialed
by the judicial officer,” and listed the violation of such orders as a class A misdemeanor,
pursuant to “Utah Code Ann. [sections] 30‐6‐4.2, 76‐5‐108, 77‐36‐1.1, and 77‐36.2.4.”3
¶6 Viewing the information contained on the face of the order itself and the
reasonable inferences drawn from the order in the light most favorable to the State, a
reasonable jury could conclude beyond a reasonable doubt that the protective order was
issued pursuant to section 30‐6‐4.2. See Montoya, 2004 UT 5, ¶ 29. Accordingly, the State
presented sufficient evidence at trial for a reasonable jury to find that Hart violated
section 76‐5‐108.
2
Section 30‐6‐4.2, now section 78B‐7‐106, is part of the Cohabitant Abuse Act. See
Utah Code Ann. §§ 30‐6‐1 to ‐15 (2007); Utah Code Ann. §§ 78B‐7‐101 to ‐116 (2008).
3
Utah Code sections 77‐36‐1.1 and 77‐36‐2.4 are part of the Cohabitant Abuse
Procedures Act. See Utah Code Ann. §§ 77‐36‐1 to ‐10 (2008).
20100540‐CA 3
¶7 We therefore affirm the trial court’s denial of Hart’s motion to dismiss.
____________________________________
Michele M. Christiansen, Judge
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¶8 WE CONCUR:
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Carolyn B. McHugh,
Presiding Judge
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J. Frederic Voros Jr.,
Associate Presiding Judge
20100540‐CA 4