State v. Isaacson ( 2017 )

2017 UT App 1THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DOUGLAS EWALD ISAACSON,
Appellant.
Memorandum Decision
No. 20150591-CA
Filed January 6, 2017
Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 141400680
Nathalie S. Skibine and Heather J. Chesnut,
Attorneys for Appellant
Simarjit S. Gill and Colleen K. Magee, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGE GREGORY K. ORME concurred. JUDGE
J. FREDERIC VOROS JR. concurred in the result, with opinion.
CHRISTIANSEN, Judge:
¶1 Douglas Ewald Isaacson (Defendant) appeals his
conviction for one count of carrying a loaded and concealed
dangerous weapon, a class A misdemeanor. 1 See Utah Code
Ann. § 76-10-504(2) (LexisNexis Supp. 2013). We affirm.
1. During the relevant time frame, Utah Code subsection 76-10-
504(2) provided that “[a] person who carries a concealed
dangerous weapon which is a loaded firearm in violation of
(continued…)
State v. Isaacson
¶2 In October 2013, the Draper City police received a tip
from a local library that Defendant was carrying a concealed
weapon and that the library staff knew he did not have a
concealed-carry permit. 2 While en route to the library, the
responding officers learned that Defendant had left the library
and was likely headed to a nearby senior center. The officers
found Defendant in the senior center’s cafeteria. Defendant
admitted to the officers that he had a gun concealed inside his
jacket, and he allowed one of the officers to remove the gun from
his jacket. The gun was fully loaded.
¶3 At a bench trial, Defendant stipulated that he did not
have a concealed-carry permit. According to Defendant, he
believed he did not need a concealed-carry permit because he
had “a Second Amendment right to bear arms.”
¶4 Before the first witness was called to testify, Defendant
indicated that he planned to call two “reputation or . . . character
witnesses.” The State objected, observing that the witnesses were
not present at the time the offense occurred and that their
testimony “would not be relevant to proving the case as far as
any of the elements that the State need[ed] to prove since they
were not present.” Defendant indicated that the witnesses would
be testifying as to his reputation for truthfulness and his
“comprehension abilities and propensities related to the
(…continued)
Subsection (1) is guilty of a class A misdemeanor.” Utah Code
Ann. § 76-10-504(2) (LexisNexis Supp. 2013).
2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard.” State v. Davie, 2011 UT
App 380, ¶ 2 n.1, 264 P.3d 770 (citation and internal quotation
marks omitted).
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concealed carry permit law and also relating to carrying a
weapon.” The trial court reserved ruling on the issue.
¶5 One of the responding police officers testified for the
State, and a body-camera video was introduced and admitted
into evidence. The video showed that Defendant was carrying a
concealed gun inside his jacket. Based on this evidence and the
testimony presented at trial, the court found that the gun was
fully loaded and could be fired “simply by pulling the trigger
one time.”
¶6 Defendant testified that he had taken the concealed-carry
class twice but that he had never obtained a concealed-carry
permit. He also testified that he did not have a holster to carry
his gun. Defendant further testified regarding his limited
finances, explaining that he had “economized” to purchase his
gun and to pay for the concealed-carry classes.
¶7 After Defendant testified, he again asked to call the two
witnesses to testify regarding his reputation for truthfulness. The
trial court ruled that the witnesses could not testify because
“there ha[d] been no attack on [Defendant’s] reputation for
truthfulness and so pursuant to the rule it would be hearsay to
have any witness come in and testify further about [Defendant’s]
reputation for truthfulness.” The court also ruled that further
testimony concerning Defendant’s “knowledge of needing a
concealed weapons permit and his feeling on the law” was
neither relevant nor admissible.
¶8 Ultimately, the trial court found Defendant guilty of
carrying a loaded and concealed dangerous weapon, see Utah
Code Ann. § 76-10-504(2) (LexisNexis Supp. 2013), and
sentenced him to one year in jail. The court suspended
Defendant’s sentence, placed him on probation, ordered him to
complete twenty-four hours of community service, and ordered
him to pay a $100 recoupment fee. Defendant appeals.
20150591-CA 3 2017 UT App 1State v. Isaacson
¶9 On appeal, Defendant contends that “the court erred
when it did not allow [him] to call two witnesses who would
have testified about [his] character for truthfulness.” We review
a trial court’s evidentiary rulings for an abuse of discretion and
its interpretation of evidentiary rules for correctness. State v.
Alzaga, 2015 UT App 133, ¶ 31, 352 P.3d 107.
¶10 Rule 608 of the Utah Rules of Evidence provides:
A witness’s credibility may be attacked or
supported by testimony about the witness’s
reputation for having a character for truthfulness
or untruthfulness, or by testimony in the form of
an opinion about that character. But evidence of
truthful character is admissible only after the
witness’s character for truthfulness has been
attacked.
Utah R. Evid. 608(a).
¶11 Here, Defendant testified in his own defense. Defendant
testified that he had paid $300 for his gun. He testified that he
had twice taken the concealed-carry class but that he had never
obtained a concealed-carry permit, even though he had “heard
about the need to have a permit.” Defendant further testified
that it was difficult for him to save the money to take the classes
and that he lived “paycheck to paycheck.” According to
Defendant, after he took the concealed-carry classes he “was
saving at the time to get the extra 50 bucks” for a concealed-carry
permit, but he was hoping the concealed-carry law would
change.
¶12 The prosecution cross-examined Defendant on various
aspects of his testimony. The prosecution asked Defendant about
his “restricted income,” and Defendant testified that he had been
living on a Social Security-based restricted income for almost
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fourteen years. The following exchange occurred during the
prosecution’s cross-examination of Defendant:
Q. And after the previous weapon was stolen you
were able to pay $300 to buy this new [gun]; is that
correct?
A. It took some time to save the money and he took
it on time and—
Q. But you did manage to scrape up $300 to buy
the [gun]?
A. Yep, took me some time, some months.
Q. And then, . . . how much did you pay for . . . the
first concealed carry class?
A. I think 50 bucks, maybe 60. I don’t know.
Q. And you stated you had to take it again?
A. Well, it runs out after six months or a year, I
can’t remember what the time limit was. So [the
instructor] let me do it again for 10 bucks.
....
Q. And you had been told that you needed to have
a holster?
A. Yeah, that was months earlier.
....
Q. And you couldn’t afford a holster at that time?
A. No.
20150591-CA 5 2017 UT App 1State v. Isaacson
¶13 On redirect examination, defense counsel asked
Defendant to further explain how he acquired the gun.
Defendant testified that he had “basically economized” to
purchase the gun and that it took “four or five months of
economizing to buy the gun.” According to Defendant, he
“stopped going to [Utah] Jazz games,” started eating at
McDonald’s “[i]nstead of going to [a sports bar],” and stopped
going to movies. He also stated that it only took “a couple
months of saving” to attend the classes.
¶14 On recross-examination, the prosecution asked Defendant
about “how much it . . . cost to go to a Jazz game” and whether
he purchased food at the games he attended. Defendant testified
that it cost “$19 for the nose bleed [section]” but that he “almost
never” paid that much and that he did not eat at the games. The
prosecution also confirmed with Defendant that he had
“economized” to purchase his gun and that it took four to five
months “to get the money for that” and “a couple months” to get
the $50 for the concealed-carry class. Defendant further testified
that he thought it cost around $50 or $60 to get a concealed-carry
permit in Utah, but he was not sure as to the exact amount.
¶15 Based on the foregoing, Defendant contends that “[t]he
prosecution attacked [his] character for truthfulness when it
cross-examined him concerning his finances after he testified
that he could not afford a permit or a holster.” We disagree.
¶16 We see no evidence of an attack upon Defendant’s
character for truthfulness. The prosecution did not suggest that
Defendant was lying about his finances or, for that matter, that
he was being untruthful about anything. Rather, the
prosecution’s cross-examination questions merely reiterated
Defendant’s responses to defense counsel’s questions regarding
his finances. The prosecution’s questions also generally
highlighted the fact that Defendant would often “economize[]”
when he wanted to make a larger purchase and that he had not
20150591-CA 6 2017 UT App 1State v. Isaacson
done so in order to obtain a concealed-carry permit. In sum, the
prosecution’s questions fell well short of attacking Defendant’s
character for truthfulness.
¶17 Because the prosecution did not attack Defendant’s
reputation for truthfulness, we conclude that the trial court did
not abuse its discretion in excluding the testimony of
Defendant’s proposed character witnesses.
¶18 Affirmed.
VOROS, Judge (concurring in the result):
¶19 I concur in the result. I would affirm on the ground that
Defendant’s character for truthfulness was irrelevant, and thus
that the exclusion of this proposed character witness was
harmless, if not incriminating.
¶20 Defendant claims that “[t]he prosecution attacked [his]
character for truthfulness when it cross-examined him
concerning his finances after he testified that he could not afford
a permit or a holster.” But whether Defendant could afford a
concealed-carry permit was irrelevant. The statute under which
he was convicted exempts those “to whom a permit to carry a
concealed firearm has been issued.” Utah Code Ann. § 76-10-
523(2) (LexisNexis Supp. 2013). It does not exempt those who
cannot afford a permit or holster. See id. Accordingly, evidence
that Defendant testified truthfully that he could not afford a
permit would only have confirmed that he did not qualify for
the statutory exemption. It would, in other words, have
confirmed Defendant’s character for truthfulness, but also his
guilt.
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