State v. Bossert , 799 Utah Adv. Rep. 10 ( 2015 )

2015 UT App 275THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DARRYL KENNETH BOSSERT,
Appellant.
Opinion
No. 20130842-CA
Filed November 12, 2015
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 121901450
Nathalie S. Skibine and Samuel J. Hanseen,
Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.
ORME, Judge:
¶1 Darryl Kenneth Bossert (Defendant) appeals his
convictions on two counts of endangerment of a child, third
degree felonies. See Utah Code Ann. § 76-5-112.5(2)(a)
(LexisNexis 2012). We affirm.
State v. Bossert
BACKGROUND1
¶2 In February 2012, Defendant’s ten-year-old son (Son) was
living with Defendant. Defendant’s friends and girlfriends
frequently visited Defendant’s house, from which Defendant
sold methamphetamine. In fact, almost everyone who came to
Defendant’s house used drugs, particularly marijuana and meth.
Son would sometimes discuss drugs with Defendant and
Defendant’s friends, asking questions about meth and what it
‚smelled like and . . . looked like when they were breathing it
out.‛ Son also knew that Defendant sold meth from the house.
¶3 Son frequently used marijuana with Defendant’s consent,
and Defendant gave Son marijuana ‚*t+wenty-five to 30 times.‛
Defendant’s friends also gave Son drugs and drug
paraphernalia. One friend gave Son meth and a ‚red mushroom
pipe.‛ Son tried meth twice, explaining, ‚Because I was curious
and I wanted to know what it was like because I thought it
would be cool if I did it.‛ Son testified that using meth gave him
a ‚*g+ood feeling‛ and made him ‚feel cool.‛
¶4 When Son told Defendant’s friends that he was smoking
meth, they informed Defendant, who ‚really yelled‛ at Son for
using meth. But Defendant did not stop giving Son marijuana,
using drugs in Son’s presence, or inviting drug users into the
home. Defendant did not remove drugs or drug paraphernalia
from his house, and he did not lock up his drugs or keep them
where Son could not access them.
¶5 On the evening of February 6, 2012, Defendant once again
gave Son marijuana. Son did not go to bed that night. Instead,
around 3:00 or 4:00 a.m., Son found a meth pipe on a counter in
1. ‚On appeal, we recite the facts in the light most favorable to
the jury’s verdict.‛ State v. Martinez, 2013 UT App 154, ¶ 2 n.1,
304 P.3d 110 (citation and internal quotation marks omitted).
20130842-CA 2 2015 UT App 275State v. Bossert
the front room of the house and he took it. Knowing that there
would be drugs in Defendant’s bedroom, Son went into the
bedroom, where Defendant was asleep with a woman Son did
not know. Son ‚went straight to *a+ drawer‛ in a bureau by
Defendant’s bed ‚*b+ecause *he+ knew‛ that Defendant would
have drugs there. Indeed, Son found marijuana in a container in
the drawer and meth on a lid to a container that was in the
drawer. He took both drugs with him. Son also looked inside the
woman’s purse, which was lying on the floor near the bed, and
found marijuana, meth, and a meth pipe, all of which he took.
¶6 Son then took all of the drugs and drug paraphernalia
back to his bedroom. Using the meth pipe from the woman’s
purse, Son smoked some of the meth. He then smoked some of
the marijuana using the red mushroom pipe that Defendant’s
friend had given him earlier.
¶7 Later that day, February 7, 2012, Son walked to his nearby
elementary school. He took the red mushroom pipe, a lighter,
the remaining marijuana, and some tinfoil with him. Son
smoked marijuana on his way to school, and once at school, he
went into the second-grade bathroom and smoked marijuana
again. Son was caught by a teacher when a second-grade boy
smelled smoke in the bathroom and reported him. Police were
called and they took Son to the hospital, where he tested positive
for both meth and marijuana. While he was at the hospital, Son
admitted to the police that he had gotten the drugs from his
house.
¶8 When Defendant came to the hospital, he was questioned
by the police. An officer noticed the smell of marijuana coming
from Defendant and asked him about his drug use. Defendant
admitted that he had just smoked marijuana and that he uses
meth as well. Defendant also admitted that it was possible that
Son had found both the meth and the marijuana in his home.
20130842-CA 3 2015 UT App 275State v. Bossert
¶9 Defendant was charged with two counts of endangerment
of a child and one count of obstructing justice. The information
alleged that the charged conduct occurred ‚on or about February
7, 2012.‛ Following a preliminary hearing, the obstruction-of-
justice charge was dismissed, and the case proceeded to trial. At
the close of the State’s case-in-chief, Defendant moved for a
directed verdict. Defendant argued that the State had not proved
that Defendant ‚caused *or+ permitted *Son+ access to these
drugs.‛ See Utah Code Ann. § 76-5-112.5(2)(a). The trial court
denied Defendant’s motion, stating that ‚*b+ased on the evidence
presented in the State’s case in chief, I find that the State has met
its burden and that there has been sufficient evidence presented
from which a jury accurately and reasonably could convict the
defendant.‛ The trial court then submitted the case to the jury,
which found Defendant guilty of both counts of child
endangerment.2
¶10 After the verdict, but before sentencing, Defendant
moved to arrest judgment, arguing that one of the State’s
witnesses at trial, a detective, had improper contact with the
jury. Defendant’s motion was accompanied by four signed
affidavits from friends of Defendant who attended the trial. The
affidavits alleged that the bailiff had called the detective to the
jury room during jury deliberations to answer a question. The
State opposed the motion and submitted the affidavit of an
investigator from the Salt Lake County District Attorney’s
Office. The investigator’s affidavit stated that he had talked with
the detective, who denied ever speaking to any member of the
jury. The detective stated that he went to a court clerk’s work
station through a door by the jury box to check whether
Defendant had any outstanding warrants. The detective stated
2. The jury was instructed that ‚Count 1 pertains to the
allegation of marijuana exposure, and Count 2 pertains to the
allegation of methamphetamine exposure.‛
20130842-CA 4 2015 UT App 275State v. Bossert
that this warrant check might have occurred during jury
deliberations.
¶11 The investigator also spoke with the bailiff, who did not
remember Defendant’s case specifically but stated that he never
allows anyone to speak with the jury as it deliberates. The trial
court took judicial notice of the fact that the door the affiants saw
the detective and the bailiff go through did not lead directly to
the jury room but into a hallway. The trial court denied
Defendant’s motion to arrest judgment. The court ultimately
sentenced Defendant to two concurrent prison terms of zero-to-
five years. Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶12 First, Defendant contends that the trial court erred when
it denied his motion for directed verdict. ‚A trial court’s ruling
on a motion for a directed verdict ‘is a question of law*,+ which
we review for correctness[,] giving no particular deference to the
trial court’s legal conclusions.’‛ State v. Hirschi, 2007 UT App
255, ¶ 15, 167 P.3d 503 (alterations in original) (quoting State v.
Krueger, 1999 UT App 54, ¶ 10, 975 P.2d 489).
¶13 Second, Defendant contends that the trial court erred in
denying his motion to arrest judgment based on improper
contact between the jury and a detective who testified during
Defendant’s trial. His apparent objective in having judgment
arrested was to receive a new trial—the relief he specifically asks
from us should we agree that the trial court erred in denying his
motion. ‚We will disturb a trial court’s factual findings
underlying its decision to deny a motion for a new trial only if
the findings are clearly erroneous.‛ State v. Burk, 839 P.2d 880,
885 (Utah Ct. App. 1992). ‚As to the decision of whether to grant
a new trial, a trial court has some discretion, and we reverse only
for abuse of that discretion.‛ Id. (citation and internal quotation
20130842-CA 5 2015 UT App 275State v. Bossert
marks omitted). The same standard applies to our review of the
denial of a motion to arrest judgment. See id.ANALYSIS
I. Denial of Directed Verdict
¶14 Defendant first argues that the trial court erred in denying
his motion for a directed verdict because ‚*n+o evidence
supported the charge that [he] knowingly or intentionally
caused or permitted *Son+ to be exposed to drugs‛ under the
child endangerment statute. See Utah Code Ann. § 76-5-112.5.
Defendant’s argument is primarily focused on whether he
‚caused or permitted‛ Son to be exposed to drugs. Defendant
contends that ‚no evidence established that *he+ consented
expressly or formally to *Son+ stealing from a houseguest’s
purse‛ and ‚no reasonable juror could have concluded that
[Defendant] consented expressly or formally to [Son] being able
to access drugs kept in a closed drawer in *Defendant+’s
bedroom.‛
¶15 ‚Trial courts may deny a motion for directed verdict if
the State has produced ‘believable evidence of all the elements of
the crime charged.’‛ State v. Skousen, 2012 UT App 325, ¶ 6, 290
P.3d 919 (quoting State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183).
When a party challenges the denial of a motion for directed
verdict alleging insufficiency of the evidence, ‚*w+e 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 reasonable jury could
find that the elements of the crime had been proven beyond a
reasonable doubt.‛ Montoya, 2004 UT 5, ¶ 29 (alteration in
original) (citation and internal quotation marks omitted). ‚*I+f
there is any evidence, however slight or circumstantial, which
tends to show guilt of the crime charged or any of its degrees, it
is the trial court’s duty to submit the case to the jury.‛ Id. ¶ 33
20130842-CA 6 2015 UT App 275State v. Bossert
(alteration in original) (citation and internal quotation marks
omitted).
¶16 The child endangerment statute provides that a person
who ‚knowingly or intentionally causes or permits a child . . . to
be exposed to, inhale, ingest, or have contact with a controlled
substance, chemical substance, or drug paraphernalia‛ is guilty
of a third degree felony. Utah Code Ann. § 76-5-112.5(2)(a).
Thus, to survive Defendant’s motion for directed verdict, the
State was required to produce believable evidence that
Defendant (1) knowingly or intentionally, (2) caused or
permitted Son, (3) ‚to be exposed to, inhale, ingest, or have
contact with a controlled substance, chemical substance, or drug
paraphernalia.‛ See id. After reviewing the evidence presented in
this case, we conclude that there was sufficient evidence for the
trial court to submit the case to the jury.
¶17 As a preliminary matter, we consider whether the trial
court was bound by the definitions in the jury instructions in
ruling on Defendant’s motion for directed verdict. More
specifically, we consider whether the definitions of ‚cause‛ and
‚permit‛ as set forth in the jury instructions were binding on the
court as it considered Defendant’s motion for directed verdict.
The jury instructions defined ‚cause‛ as ‚to compel by
command, authority, or force‛ and ‚permit‛ as ‚to consent to
expressly or formally.‛ The State contends that the jury-
instruction definitions are irrelevant because Defendant is only
contesting the trial court’s denial of his motion for directed
verdict and not the sufficiency of the evidence to support the
jury’s verdict under the instructions given.
¶18 We conclude that in considering Defendant’s motion for
directed verdict, the trial court was not bound by the jury-
instruction definitions of ‚cause‛ and ‚permit.‛ To begin with,
in making his motion for a directed verdict, Defendant did not
argue that the trial court was bound by the jury-instruction
definitions. Nor had the instructions been given to the jury at
20130842-CA 7 2015 UT App 275State v. Bossert
that point in time.3 But in any event, in ruling on a motion for
directed verdict, a trial court ‚may deny *the+ motion . . . if the
State has produced ‘believable evidence of all the elements of the
crime charged.’‛ Skousen, 2012 UT App 325, ¶ 6 (quoting
Montoya, 2004 UT 5, ¶ 29). Thus, a trial court’s directed-verdict
inquiry is guided not by the jury instructions that will later be
given to the jury, but by the elements of the crime as defined by
the applicable law, i.e., the statutory provisions establishing and
defining the offense. Consequently, even though the jury
instructions had been discussed in a pretrial conference, and
even if they were preliminarily or definitively approved, the trial
court was not bound by the jury instructions in considering
Defendant’s motion for a directed verdict.
¶19 On appeal, ‚*w+e will uphold the trial court’s decision *on
a motion for directed verdict] if, upon reviewing the evidence
and all inferences that can be reasonably drawn from it, we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven
beyond a reasonable doubt.‛ Montoya, 2004 UT 5, ¶ 29 (first
3. While it is undisputed that the jury instruction containing
Defendant’s definitions of ‚cause‛ and ‚permit‛ had not yet
been read to the jury at the time of Defendant’s motion for
directed verdict, it is less clear whether the instruction had been
conclusively approved by the trial court, because the pretrial
discussion of the jury instructions was not transcribed and is not
before us as part of the record on appeal. Indeed, it is unclear
whether the pretrial discussion of the jury instructions was ever
recorded in the first place. Hopefully it was. See Briggs v.
Holcomb, 740 P.2d 281, 283 (Utah Ct. App. 1987) (‚Although
consistently making a record of all proceedings imposes a
greater burden on the trial court and court reporters, it is
impossible for an appellate court to review what may ultimately
prove to be important proceedings when no record of them has
been made.‛) (footnote omitted).
20130842-CA 8 2015 UT App 275State v. Bossert
alteration in original) (citation and internal quotation marks
omitted). Therefore, our inquiry on appeal is guided by the
statutes establishing and defining the offense and not by the
standards described in the jury instructions. See United States v.
Inman, 558 F.3d 742, 748 (8th Cir. 2009) (‚‘[I]n determining
whether a trial court has erred in denying a motion for a directed
verdict made at the close of the evidence, it is the applicable law
which is controlling, and not what the trial court announces the
law to be in [its] instructions.’‛) (quoting Coca Cola Bottling Co. of
Black Hills v. Hubbard, 203 F.2d 859, 862 (8th Cir. 1953)).
Accordingly, in reviewing Defendant’s challenge to the denial of
his motion for directed verdict, we examine the evidence
introduced at trial regarding whether Defendant endangered
Son and compare it to the statutory elements of the offense as
established in section 76-5-112.5 of the Utah Code.
¶20 We start by addressing the third element of the child
endangerment statute—the ‚exposed to‛ portion. See Utah Code
Ann. § 76-5-112.5(2)(a). In relevant part, the statute defines
‚exposed to‛ as ‚able to access or view an unlawfully possessed
. . . controlled substance‛ or as ‚the reasonable capacity to access
drug paraphernalia.‛ Id. § 76-5-112.5(1)(e). In State v. Gallegos,
2007 UT 81, 171 P.3d 426, the Utah Supreme Court held that
for a child to be exposed to . . . a controlled
substance, chemical substance, or drug
paraphernalia under the child endangerment
statute, a real, physical risk of harm to the child
must exist. In order for the risk to be real, the child
must have a reasonable capacity to actually access
or get to the substance or paraphernalia or to be
subject to its harmful effects, such as by inhalation
or touching.
Id. ¶ 11 (omission in original) (internal quotation marks
omitted).
20130842-CA 9 2015 UT App 275State v. Bossert
¶21 In this case, the State presented ample evidence that Son
was ‚exposed to‛ meth and marijuana. To begin with, Son was
consistently able to access drugs while he was living in
Defendant’s house. See supra ¶¶ 2–4. But more importantly, on
the day in question—February 7, 2012—Son ‚actually
access*ed+‛ meth and marijuana in Defendant’s drawer and he
inhaled or ingested both drugs. See Gallegos, 2007 UT 81, ¶ 11.
Indeed, when the police took Son to the hospital, he tested
positive for both meth and marijuana, and he admitted to the
police that he had gotten the drugs from Defendant’s house.
Consequently, there is no real dispute as to whether Son was
‚exposed to‛ drugs. Thus, our resolution of this case turns on
whether there was believable evidence that Defendant
‚knowingly or intentionally‛ ‚cause[d] or permit[ted]‛ Son’s
exposure to drugs. See Utah Code Ann. § 76-5-112.5(2)(a).
¶22 The Utah Code defines the terms ‚knowingly‛ and
‚intentionally.‛ See id. § 76-2-103. A person acts ‚*k+nowingly, or
with knowledge, with respect to his conduct or to circumstances
surrounding his conduct when he is aware of the nature of his
conduct or the existing circumstances.‛ Id. § 76-2-103(2).
Additionally, ‚*a+ person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.‛ Id. A person
acts ‚*i+ntentionally, or with intent or willfully with respect to
the nature of his conduct or to a result of his conduct, when it is
his conscious objective or desire to engage in the conduct or
cause the result.‛ Id. § 76-2-103(1). At trial, both sides focused on
whether Defendant acted knowingly, and on appeal, the State
does not seriously assert that Defendant acted intentionally in
this case. Accordingly, we only consider whether Defendant
acted ‚knowingly.‛
¶23 The Utah Code does not define ‚cause‛ or ‚permit.‛
Thus, we must determine the proper meaning of these terms as
20130842-CA 10 2015 UT App 275State v. Bossert
used in the child endangerment statute.4 ‚When interpreting
statutory language, we presume that the Legislature used each
word advisedly, and we give effect to each term according to its
ordinary and accepted meaning.‛ State v. Terwilliger, 1999 UT
App 337, ¶ 10, 992 P.2d 490 (citation and internal quotation
marks omitted).
¶24 Webster’s Third New International Dictionary defines
‚cause‛ as to ‚bring into existence‛ or ‚to effect by command,
authority, or force.‛ Webster’s Third New Int’l Dictionary 356
(1993). Cf. State v. Wheeler, 2005 UT App 255U, paras. 3, 5
(affirming the defendant’s conviction for ‚knowingly caus*ing+
or encourag*ing+‛ his son’s delinquency where ‚*t+he evidence
reflect[ed] that [the defendant] knew or should have known that
by allowing the two separate visits [by his son] he caused or
encouraged the son to violate [an] agreement with Youth
Corrections‛).
¶25 Additionally, Webster’s defines ‚permit‛ as ‚to consent to
expressly or formally[, or to] grant leave for or the privilege
of[, or to] allow, tolerate[;] . . . to give (a person) leave [or to]
4. We note that absent a statutorily mandated definition of a
term, the definition that applies in any particular case is not
carved in stone. ‚In determining the ordinary meaning of
nontechnical terms of a statute, our starting point is the
dictionary.‛ State v. Canton, 2013 UT 44, ¶ 13, 308 P.3d 517(citation and internal quotation marks omitted). But the
dictionary ‚will often fail to dictate what meaning a word must
bear in a particular context.‛ Id. (emphasis in original) (citation
and internal quotation marks omitted). Rather, the definition
that applies in a particular context is often a function of the facts
and surrounding circumstances. And opinions will often vary as
to the best approach for ferreting out the legislatively intended
meaning of statutory terms. See, e.g., State v. Rasabout, 2015 UT
72, 356 P.3d 1258.
20130842-CA 11 2015 UT App 275State v. Bossert
authorize*;+ . . . to make possible *or+ to give an opportunity.‛
Webster’s Third New Int’l Dictionary 1683 (1993).5 In State v.
Terwilliger, 1999 UT App 337, 992 P.2d 490, this court determined
that the term ‚permits‛ ‚suggests some measure of control or
participation—in other words, active or knowing acquiescence.‛
Id. ¶ 11.
¶26 In Terwilliger, the defendant, an eighteen-year-old adult
minor, see id. ¶ 3 n.1, was charged with contributing to the
delinquency of a minor and unlawful purchase, possession, or
consumption of alcohol by a minor after police officers found
him drinking with two minors under the age of eighteen. See id.
¶¶ 3, 5, 12. After a bench trial, the trial court found that the
defendant ‚permit*ted+ someone under the age of eighteen to
consume an alcoholic beverage‛ and that he was guilty of both
charges. Id. ¶ 5. The trial court ‚based its ruling on the fact that
defendant simply witnessed two minors in his presence
consuming alcohol.‛ Id. ¶ 12.
¶27 On appeal, the defendant challenged the sufficiency of the
evidence to support his conviction of contributing to the
delinquency of a minor under section 78-3a-801 of the Utah
Code.6 Id. ¶ 1. More specifically, he argued that ‚the trial court
5. We acknowledge that Webster’s Third New International
Dictionary includes Defendant’s argued-for definition of
‚permit,‛ i.e., ‚to consent to expressly or formally.‛ Webster’s
Third New Int’l Dictionary 1683 (1993). However, this definition is
one of many and does not necessarily control.
6. Under section 78-3a-801 of the Utah Code, ‚*t+he court shall
have concurrent jurisdiction to try . . . any person 18 years of age
or older who . . . encourages or permits a minor to consume an
alcoholic beverage or controlled substance.‛ Utah Code Ann.
§ 78-3a-801(1)(d)(ii) (Michie 1996) (renumbered in 2008 as Utah
Code Ann. § 78A-6-1001 (LexisNexis 2012)).
20130842-CA 12 2015 UT App 275State v. Bossert
erred when it found that defendant’s mere presence at the
drinking party was tantamount to ‘permitting’ minors to
consume alcohol, which the applicable statute prohibits.‛ Id. ¶ 7.
¶28 This court concluded that the plain language of section
78-3a-801 did not support the prosecution or the conviction of
the defendant, who had ‚merely see*n+ others violate the law.‛
Id. ¶ 12. Rather, the defendant had to have ‚some measure of
control over the minors’ consumption of alcohol.‛ Id. (emphasis
added). In Terwilliger, there was no evidence that the defendant
and the minors had a relationship or that the defendant had
provided the alcohol to the minors. Id. ¶¶ 3–4, 12. Cf. State v.
Wheeler, 2005 UT App 255U, para. 4 (distinguishing Terwilliger,
where the defendant ‚did not have a relationship or any prior
involvement with the minor,‛ from the case at hand, where the
defendant was the minor’s father, ‚thereby giving *him+ greater
control and understanding of the situation‛) (internal quotation
marks omitted). Consequently, the Terwilliger court determined
that the clear weight of the evidence did not support a finding
that the defendant permitted minors to consume alcohol and
vacated the defendant’s conviction for contributing to the
delinquency of a minor. See 1999 UT App 337, ¶ 13.
¶29 Although Defendant’s requested definition of ‚permit‛ as
‚to consent to expressly or formally‛ is included in the
dictionary, see supra ¶ 25 & n.5, we decline to adopt this
definition because we do not think that such a narrow definition
of the term is legislatively intended under the child
endangerment statute. We agree with the Terwilliger court’s
interpretation of ‚permit‛ as requiring ‚some measure of control
or participation—in other words, active or knowing
acquiescence.‛ See Terwilliger, 1999 UT App 337, ¶ 11. We
therefore employ this definition in considering Defendant’s
appeal. In addition, we use the dictionary definition of the term
‚cause,‛ along the lines employed in Wheeler. See supra ¶ 24. In
light of these definitions, we next determine whether there was
sufficient evidence to support a reasonable belief that Defendant
20130842-CA 13 2015 UT App 275State v. Bossert
knowingly caused or permitted Son to be exposed to drugs.
Defendant contends that he could not have knowingly caused or
permitted Son to access the drugs in his drawer since he ‚was
asleep because it was three or four in the morning.‛ We disagree.
¶30 In this case, Son’s actions on the morning of February 7,
2012, cannot be viewed in isolation. Defendant had created an
atmosphere within his home in which drug use was open and
prevalent. As previously discussed, Defendant sold drugs from
his home, and he and his friends frequently used drugs in front
of Son and left drugs and drug paraphernalia in plain view,
where Son could easily access them. See supra ¶¶ 2–4. Defendant
and his friends also discussed meth with Son and answered
Son’s questions about meth. Defendant frequently gave
marijuana to Son. In general, Defendant countenanced a thriving
drug culture within his home, and Son was continuously
surrounded by and familiar with that culture.
¶31 Moreover, Defendant knew about Son’s frequent drug use
and continued to enable it. Son testified at trial that Defendant
gave him marijuana ‚[t]wenty-five to 30 times,‛ including on the
night Son went into Defendant’s bedroom to get drugs out of his
drawer. Instead of discouraging Son’s use of marijuana, Son
testified that Defendant told him ‚not to get caught because I
would get him in trouble and me in trouble . . . and he’d lose
me.‛ Although Defendant yelled at Son after he found out that
Son had used meth, Defendant still allowed drug users to come
into his house, and he did nothing to prohibit Son from
accessing drugs within the house.
¶32 Finally, Defendant kept his drugs in a readily accessible
place—an unlocked bureau drawer where Son knew Defendant
kept his drugs. Son testified that when he went looking for drugs
in the early morning hours of February 7, 2012, he ‚went straight
to *Defendant’s+ drawer‛ because he ‚knew that *Defendant+
would have *drugs+ in his room‛ and that Defendant ‚keeps all
of his pipes and stuff in his room.‛ That same night, Son easily
20130842-CA 14 2015 UT App 275State v. Bossert
found a meth pipe sitting on a counter in the front room of
Defendant’s house.
¶33 This evidence suggests that Defendant continuously kept
drugs and drug paraphernalia in his house in places that were
readily accessible to Son and that Son actually accessed drugs
and drug paraphernalia on multiple occasions. Unlike the
situation in Terwilliger, in which several young people showed
up to a party to drink together, see Terwilliger, 1999 UT App 337,
¶¶ 3–4, Defendant and Son were in a parent–child relationship.
Thus, Defendant had more than the requisite ‚some measure of
control‛ over Son’s exposure to drugs. See id. ¶ 12. As Son’s
father, and with Son being only ten years old, Defendant had
absolute control over Son’s exposure to drugs within his home.
Defendant could have prevented his friends from using drugs
within the home and from giving drugs to Son, he could have
refrained from using drugs in the home, and he could have
stopped giving Son drugs. At the very least, he could have
physically secured any illegal drugs he brought into the home.
Yet Defendant continuously and willfully allowed his friends to
use drugs within the home, allowed Son to use marijuana within
the home, provided Son with marijuana on multiple occasions,
and left both marijuana and meth in an unlocked drawer where
they were easily accessible.
¶34 Although Defendant did not give his express permission
for Son to take the drugs from his drawer on the morning of
February 7, 2012, Defendant had established an environment in
which it was acceptable for Son to participate in the thriving
drug culture Defendant promoted, and Defendant’s sustained
pattern of conduct sent a clear message to Son that Defendant
‚knowing*ly+ acquiesc*ed+‛ in Son’s use of and exposure to
drugs, thereby ‚permitting‛ it for purposes of the statute. See id.
¶ 11. Furthermore, Defendant caused Son to be exposed to
drugs—Defendant’s sustained pattern of giving Son drugs and
communicating to Son that it was okay for him to use marijuana,
ultimately and unsurprisingly ‚br[ought] into existence‛ Son’s
20130842-CA 15 2015 UT App 275State v. Bossert
exposure to drugs on February 7, 2012, and on multiple other
occasions. See Webster’s Third New Int’l Dictionary 356 (1993)
(defining ‚cause‛).
¶35 Based on the foregoing, we conclude that there was
‚some evidence . . . from which a reasonable jury could find,‛ see
State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183 (citation and
internal quotation marks omitted), that Defendant knowingly
caused or permitted Son to be exposed to drugs as proscribed by
the child endangerment statute, see Utah Code Ann. § 76-5-112.5.
Defendant’s ‚conduct *was+ reasonably certain to cause the
result‛ that Son would be exposed to drugs. See id. § 76-2-103(2)
(defining ‚knowingly‛). Moreover, Defendant’s pattern of
conduct relating to Son’s drug use was sufficient to establish that
he caused or permitted Son to be exposed to drugs. See supra
¶¶ 33–34; Utah Code Ann. § 76-5-112.5(1)(e). Consequently, we
conclude that the State introduced sufficient evidence to prove
that Defendant knowingly caused or permitted Son to be
exposed to meth and marijuana.7 The trial court did not err in
denying Defendant’s motion for directed verdict.
II. Denial of Motion to Arrest Judgment
¶36 Defendant next argues that the trial court erred when it
denied his motion to arrest judgment. Specifically, he contends
that the trial court disregarded ‚persuasive evidence‛ of
improper contact between a testifying detective and the jury.
7. If the child endangerment statute required intentional
exposure, this would be a much closer case. However, the statute
provides two different ways to satisfy the first element: either by
knowingly exposing a child to drugs or intentionally exposing a
child to drugs. See Utah Code Ann. § 76-5-112.5(2)(a) (LexisNexis
2012). The State’s evidence need only satisfy one of the mens rea
alternatives to survive a motion for a directed verdict, and it
readily satisfied the ‚knowing‛ alternative.
20130842-CA 16 2015 UT App 275State v. Bossert
¶37 In support of his motion to arrest judgment, Defendant
submitted affidavits from four trial attendees, all of whom were
Defendant’s friends, each of which stated that the bailiff called a
testifying detective to go to the jury room to answer a question
for the jurors. In response, the State submitted an affidavit from
an investigator with the Salt Lake County District Attorney’s
Office, who had interviewed both the detective and the bailiff.
The detective told the investigator that ‚he had not spoken to
any member of the jury in this case at any time.‛ He also stated
that he went ‚to one of the clerk’s work stations with the bailiff
to check the state record . . . to determine if [Defendant] had an
outstanding warrant for his arrest‛ and that ‚this occurred
before a verdict in the case and may have been during jury
deliberations, but *he+ was not sure of the timing.‛ Although the
bailiff was initially unsure to which case the investigator was
referring, he ultimately told the investigator that he knew with
‚certainty‛ that ‚he did not allow anyone to speak to the jury as
they deliberated‛ ‚because it would violate the rules of conduct
and he has never allowed such activity in any case where he has
had a jury in his charge.‛ The bailiff also recalled using a clerk’s
work station to check for a warrant, but he did not recall if the
detective was present.
¶38 After reviewing the parties’ affidavits, the trial court
asked whether either party wanted an evidentiary hearing on
the matter:
[Trial court]: And so I have received documents
from both sides. Does any—do either party believe
an evidentiary hearing or anything further is
needed?
[Prosecutor]: No, your Honor.
[Defendant’s trial counsel]: No, your Honor. The
Court received the affidavits [I] submitted, I guess,
two weeks ago?
20130842-CA 17 2015 UT App 275State v. Bossert
*Trial court+: Yes, I’ve reviewed all that and I’ve
received from the State as well.
*Defendant’s trial counsel]: So I would submit it on
the motion I filed as well as the affidavits.
¶39 Additionally, the trial court took judicial notice, without
objection, to the fact that the door ‚near the jury box does not
lead into a jury room; it leads into a hallway.‛ The court then
denied Defendant’s motion, stating that
[n]o witness testified that he or she witnessed any
interaction between the jury and the witness but
only by inference and speculation likely surmising
that the door by the jury box leads directly into the
jury room.
There is no evidence of contact between the
witness and the jury, only evidence that the
witness utilized the same door that the jury had
used. So here, no evidence of unauthorized
conduct is present. The witnesses who had direct
personal knowledge testified that no contact
between the [detective] and the jury took place.
The witnesses who have personal knowledge
indicate that [the detective] did use the same door
as the jury but that he did so to access a computer
in the hallway directly outside of that door.
So the Court finds that there’s no evidence of
improper jury contact that was made, and so
there’s no presumption *of] prejudice attaching to
that and as such I’m denying the motion.
¶40 Utah courts ‚have long taken a strict approach in assuring
that the constitutional guarantee of a fair trial not be
compromised by improper contacts between jurors and
20130842-CA 18 2015 UT App 275State v. Bossert
witnesses, attorneys, or court personnel.‛ State v. Pike, 712 P.2d
277, 279 (Utah 1985). ‚The rule in this jurisdiction is that
improper juror contact with witnesses or parties raises a
rebuttable presumption of prejudice.‛ Id. at 280. This
presumption arises when there is any ‚unauthorized contact . . .
which goes beyond a mere incidental, unintended, and brief
contact.‛ Id. Implicit in this approach is the idea that the
presumption of prejudice attaches only after it is established that
improper jury contact actually occurred. We conclude that the
trial court’s factual findings were supported by competent
evidence and that the court did not abuse its discretion in
denying Defendant’s motion to arrest judgment.
¶41 In this case, Defendant’s affiants did not actually witness
a conversation between the detective and the jury; they merely
witnessed the detective and the bailiff walk through the same
door near the jury box, and they apparently assumed that the
bailiff took the detective to the jury room. But, as the trial court
judicially noticed, the door near the jury box did not lead
directly into the jury room but into a hallway. Thus, Defendant’s
affidavits might have suggested the possibility of improper jury
contact, but because of Defendant’s assurance that an
evidentiary hearing was unnecessary, neither the detective, the
bailiff, nor any of the jurors were called to testify or were
questioned by the trial court about the theorized improper
contact. Moreover, the only witnesses directly involved—the
detective and the bailiff—denied that any improper contact with
the jury occurred, thus dispelling any inference of improper
contact suggested by Defendant’s affiants.
¶42 Because there was no direct evidence of improper contact
between the detective and the jury, no presumption of prejudice
arises in this case. Consequently, the trial court did not abuse its
discretion by denying Defendant’s motion to arrest judgment.
20130842-CA 19 2015 UT App 275State v. Bossert
CONCLUSION
¶43 The trial court did not err when it denied Defendant’s
motion for directed verdict. Nor did the court abuse its
discretion when it denied Defendant’s motion to arrest
judgment. Accordingly, Defendant’s convictions are affirmed.
20130842-CA 20 2015 UT App 275