State v. Black

2015 UT App 30_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellant,
v.
MICHAEL S. BLACK AND ALTA MARIE BLACK,
Defendants and Appellees.
Opinion
No. 20130535-CA
Filed February 12, 2015
Third District Court, West Jordan Department
The Honorable Mark S. Kouris
Nos. 111400921 & 111400922
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellant
John Walsh, Attorney for Appellee
Michael S. Black
Grant W.P. Morrison, Attorney for Appellee
Alta Marie Black
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES
GREGORY K. ORME and KATE A. TOOMEY concurred.
PEARCE, Judge:
¶1 Seven months after a jury returned guilty verdicts against
Michael S. Black and Alta Marie Black, the district court arrested
judgment, dismissed the charges, and acquitted the defendants
based upon newly available testimony that had not been
State v. Black
presented at trial.1 We conclude that the district court lacked the
authority to acquit the defendants and that its order was in effect
an arrest of judgment. We conclude that the district court erred
in arresting judgment, because a district court may only consider
the facts proved or admitted at trial to determine whether they
constitute a public offense. We further conclude that the district
court erred by dismissing the charges, because it based that
decision on its own reassessment of witness credibility in light of
new testimony. The State concedes that the defendants should be
granted a new trial based upon the now-available evidence. We
reverse the district court’s arrest of judgment, dismissal of
charges, and order of acquittal. We remand the case to the
district court to consider the motion for new trial in light of the
State’s concession.
BACKGROUND
¶2 We recite the facts in the light most favorable to the jury’s
verdict, and we present conflicting evidence as necessary to
understand issues raised on appeal. State v. Heaps, 2000 UT 5,
¶ 2, 999 P.2d 565; State v. Melancon, 2014 UT App 260, ¶ 3, 339
P.3d 151.
¶3 The State accused Michael S. Black and Alta Marie Black
(Defendants) of committing a number of financial misdeeds
arising out of a series of real estate transactions. The State
brought fourteen charges against Defendants, alleging that they
1. We recognize the conceptual difficulty inherent in the district
court dismissing the charges and acquitting the defendants of
those same charges. On appeal, the parties treat both orders as
effectual and analyze them separately. We follow their approach.
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had misused funds entrusted to them by a would-be homebuyer
(Homebuyer).
¶4 In 2005, Homebuyer had paid a $60,000 deposit toward
the purchase of a house and began making monthly payments.
Later, Homebuyer asked Defendants to help her complete the
house purchase and entrusted $180,400 to them for that purpose.
On September 22, 2008, Alta Marie Black and a title agent (Title
Agent) came to Homebuyer’s residence. Homebuyer signed
documents that relinquished her interests in the $60,000 and in
the house to Defendants.2 Defendants then resold the house,
claiming that it would help Homebuyer buy a different house.
Homebuyer received no more than $6,000 from the transaction.
¶5 At trial, Homebuyer testified about the September 22,
2008 meeting. She stated that she had been ill and vomiting.
According to Homebuyer, Alta Marie Black and Title Agent
arrived with documents and would not leave until Homebuyer
signed all of them. Homebuyer testified that she had not seen the
documents before and did not know what she was signing.
Homebuyer claimed that Alta Marie Black told her that she was
going to get her money back. Homebuyer also testified that
because she could not see well that day, Alta Marie Black and
Title Agent put Homebuyer’s fingers on the signature lines to
help her sign the documents.3
2. These documents included a reconveyance of Homebuyer’s
interest in the house to Alta Marie Black and a beneficiary’s
demand for payoff. The demand was for “$0,” was signed by
Homebuyer, and was notarized by Title Agent.
3. Alta Marie Black also testified about the meeting. She claimed
that Homebuyer had not said anything about being sick and that
Homebuyer had been “ambulatory.”
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¶6 At the close of the State’s case, Defendants moved for a
directed verdict. The court denied the motion. After the defense
presented its case, the jury returned guilty verdicts against
Defendants.4 A week after trial, Defendants filed a motion for
judgment notwithstanding the verdict regarding one of the
counts and a motion for new trial. Those motions focused on an
exhibit that the State had introduced at trial.
¶7 Several months later, but before sentencing, Defendants
filed a supplemental memorandum to the motion for new trial.
Defendants also filed a motion to arrest judgment. Defendants
argued that the State had withheld or concealed exculpatory
evidence—Title Agent’s testimony—by convincing Title Agent
that she could be prosecuted for talking to Defendants or their
attorneys.
¶8 During the investigation of the case, the State had
subpoenaed Title Agent. At that time, the State’s investigator
told Title Agent that she could not disclose the existence of the
subpoena to anyone outside the title company. Based on this
conversation, Title Agent believed that she was forbidden from
discussing the case with Defendants or their attorneys.5 When
the State subpoenaed her to testify at trial, Title Agent reported
that she had suffered a brain injury and would be unable to
testify because of the medication she had been prescribed. The
4. Specifically, the jury found Michael S. Black guilty on three
counts of theft, four counts of money laundering, and one count
of engaging in a pattern of illegal activity. The jury found Alta
Marie Black guilty on one count of theft.
5. There is a dispute as to whether the State’s investigator
mischaracterized or Title Agent’s attorney misconstrued the
scope and duration of the instruction not to discuss the
investigation.
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trial was later postponed, but neither side subpoenaed Title
Agent to testify at the rescheduled trial. After the trial,
Defendants’ attorneys subpoenaed Title Agent. Title Agent
contacted the prosecutor to ask whether she could respond.
According to Title Agent, the prosecutor told her that “it was a
free world” and that there was never a “gag order.” Defendants’
attorneys then deposed Title Agent.
¶9 Based upon her deposition testimony, the district court
ordered a post-trial evidentiary hearing to permit Title Agent to
testify about the September 22, 2008 meeting with Homebuyer.
There, Title Agent testified that she had discussed the
documents with Homebuyer, that Homebuyer did not ask for
more time to review the documents, and that Title Agent had not
refused to leave until the documents were signed. Title Agent
also testified that she had not heard Alta Marie Black refuse to
leave until the documents were signed.
¶10 The district court determined that Title Agent’s testimony
“seriously undermines the testimony . . . and credibility of a very
critical State’s witness that a lot of this evidence balanced upon.”
The court continued, “I find [Title Agent] undermines the
veracity of [Homebuyer’s] claim that she didn’t enter into this
real estate transaction knowingly, voluntarily, that her mind
wasn’t clear that day, that she hadn’t had everything explained
to her.” Viewing the evidence in the light most favorable to the
State’s case and the jury’s verdict, the district court found that
there was “good cause to believe that a theft here was not
committed” and that the other crimes charged relied upon a
finding of theft. Accordingly, the district court arrested
judgment, dismissed all of the charges against Defendants, and
ordered Defendants acquitted. The State appeals.
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ISSUES AND STANDARDS OF REVIEW
¶11 The State challenges the district court’s decision to acquit
Defendants, arrest judgment, and dismiss the charges. We
review the district court’s decision to acquit a defendant after a
jury has returned a guilty verdict for correctness. See State v.
Myers, 606 P.2d 250, 252 (Utah 1980).
¶12 A district court “may arrest a jury verdict when the
evidence, viewed in the light most favorable to the verdict, is so
inconclusive or so inherently improbable as to an element of the
crime that reasonable minds must have entertained a reasonable
doubt as to that element.” State v. Bolson, 2007 UT App 268, ¶ 10,
167 P.3d 539 (citation and internal quotation marks omitted).
Accordingly, we review the district court’s decision to arrest
judgment for correctness.
¶13 A district court’s determination that the evidence
presented at trial “is not legally sufficient to establish the offense
charged,” see Utah R. Crim. P. 17(p), is a legal determination,
which we review for correctness, see State v. Hamilton, 2003 UT
22, ¶ 17, 70 P.3d 111.
ANALYSIS
I. Acquittal
¶14 The State first argues that the district court erred in
characterizing its action as an acquittal. The district court
ordered “that Alta Black and Michael Black are acquitted of all
charges filed in this matter.” “In Utah, a judge may not acquit a
defendant after a jury returns a guilty verdict.” State v. Larsen,
834 P.2d 586, 589 (Utah Ct. App. 1992). Indeed, this court has
noted that there “is no rule . . . that allows a judge, who is not the
trier of fact, to acquit a defendant following a jury verdict of
guilty.” Id. The Utah Supreme Court has explained that when
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“there has been a trial by jury, the [S]tate, as well as the
defendant, is entitled to the benefit of the findings and the
verdict of the jury.” State v. Myers, 606 P.2d 250, 251 (Utah 1980).
¶15 “[T]he label attached to a ruling by a trial judge is not
determinative of whether the termination of a criminal
prosecution is an acquittal.” State v. Musselman, 667 P.2d 1061,
1064 (Utah 1983). In Larsen, we distinguished between an
acquittal (which requires a finding that the evidence was
insufficient to enable the jury to convict) and an arrest of
judgment (which allows the district court to determine whether
the facts established at trial actually demonstrate prohibited
conduct). Larsen, 834 P.2d at 590; see also Utah R. Crim. P. 23
(“[T]he court upon its own initiative may, or upon motion of a
defendant shall, arrest judgment if the facts proved or admitted
do not constitute a public offense . . . .”). The district court in
Larsen, like the district court here, denied a motion for directed
verdict at the close of the State’s case, finding that the evidence
presented was sufficient to support a guilty verdict. Larsen, 834
P.2d at 590. We conclude, as we did in Larsen, that the post-
verdict order was in substance an arrest of judgment and not an
acquittal.6 See id.II. Arrest of Judgment
¶16 The State next contends that the district court erred by
arresting judgment. The arrest-of-judgment rule provides that a
district court may “arrest judgment if the facts proved or
6. This distinction is more than a matter of semantics. Utah Code
section 77-18a-1 allows the State to appeal from an arrest of
judgment, see Utah Code Ann. § 77-18a-1(3) (LexisNexis 2012),
but a valid acquittal is not appealable “no matter how
overwhelming the evidence against the defendant may be,” see
State v. Musselman, 667 P.2d 1061, 1064 (Utah 1983).
20130535-CA 7 2015 UT App 30State v. Black
admitted do not constitute a public offense, or the defendant is
mentally ill, or there is other good cause for the arrest of
judgment.” Utah R. Crim. P. 23. The State argues that it was
improper for the court to find that the evidence, including
testimony not presented at trial, did not constitute the public
offenses charged.
¶17 Here, the district court arrested judgment because it
found that the totality of the evidence was “so inconclusive and
so inherently improbable as to the element required in this
crime, that reasonable minds must entertain a reasonable doubt
as to that . . . element.” We construe this to be, in essence, a
ruling that the “facts proved or admitted do not constitute a
public offense.” Utah R. Crim. P. 23. In determining that the
complete evidentiary picture was inherently improbable, the
district court relied heavily on Title Agent’s post-trial testimony.
Because this testimony was never presented to the jury, the facts
it contained were never proved or admitted, as rule 23 requires.
See id. Thus, it was error for the district court to arrest judgment
based upon evidence never presented to the jury.
III. Dismissal of Charges
¶18 The State also contends that the district court erred by
dismissing the charges against Defendants. The district court
dismissed the charges because it found that the evidence
supporting those charges was inherently improbable. “At the
conclusion of the evidence by the prosecution, or at the
conclusion of all the evidence, the court may issue an order
dismissing any information or indictment, or any count thereof,
upon the ground that the evidence is not legally sufficient to
establish the offense charged therein or any lesser included
offense.” Utah R. Crim. P. 17(p). Here, however, the evidence
was not legally insufficient. Indeed, the district court denied
Defendants’ motion for a directed verdict at the end of the
State’s case-in-chief. This was an implicit ruling that the State’s
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evidence was sufficient, if the jury believed it, to support a
conviction.
¶19 Title Agent’s post-trial testimony contradicted the
evidence presented at trial. Thus, if it had been presented to the
jury, it would have created an evidentiary conflict. The existence
of a conflict in the evidence does not render the totality of the
evidence insufficient. It is the role of the factfinder to examine
and resolve such conflicts. And “[w]hen the evidence presented
is conflicting or disputed, the jury serves as the exclusive judge
of both the credibility of witnesses and the weight to be given
[to] particular evidence.” State v. Yanez, 2002 UT App 50, ¶ 19, 42
P.3d 1248 (citation and internal quotation marks omitted).
¶20 In certain limited circumstances a reviewing court may
reassess witness credibility. For example, a court may reconsider
a witness’s testimony when the events described therein are
physically impossible or the testimony standing alone appears
false without resort to inferences or deductions. See id.; see also
State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288. When confronted
with an apparent falsity, a district court may “reevaluate the
jury’s credibility determinations only in those instances where
(1) there are material inconsistencies in the [witness’s] testimony
and (2) there is no other circumstantial or direct evidence of the
defendant’s guilt.” Robbins, 2009 UT 23, ¶ 19. “The existence of
any additional evidence supporting the verdict prevents the
judge from reconsidering the witness’s credibility.” Id. Thus, a
court may not intrude upon the domain of a jury simply because
two or more witnesses give conflicting accounts.
¶21 When a jury has been deprived of the ability to assess
conflicting evidence, the correct remedy is not to substitute the
court’s assessment of weight and credibility for the jury’s.
Rather, if the district court determines that the absence of the
newly available evidence “had a substantial adverse effect upon
the rights of a party,” the court should consider granting a new
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trial to afford a jury the opportunity to consider that evidence for
itself. See Utah R. Crim. P. 24.
¶22 We conclude that the district court erred by weighing the
evidence after the jury returned a verdict and determining that a
reasonable jury could never resolve the evidentiary conflict Title
Agent’s testimony created in favor of conviction. The court
therefore erred by dismissing the charges against Defendants.
CONCLUSION
¶23 The district court’s order of acquittal was in effect an
arrest of judgment, which we reverse. The district court
improperly considered evidence not presented at trial to
determine whether the evidence was sufficient to demonstrate a
public offense; the court’s arrest of judgment was therefore error.
Because the power to resolve evidentiary conflicts belonged to
the jury in this matter, the district court erred by dismissing the
charges against Defendants on the ground that one witness’s
testimony rendered the other evidence inherently improbable.
We reverse the district court’s arrest of judgment, dismissal of
charges, and order of acquittal. We remand to the district court
to consider Defendants’ motion for new trial, particularly in light
of the State’s concession that Title Agent’s testimony might have
resulted in a different trial verdict had it been presented to the
jury.
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