State v. Amboh

• Docket Number: 20210678-CA
• Decision Date: 14 December 2023
• Parties: State of Utah, Appellee, v. Tara Jeanne Amboh, Appellant.
• Court: Utah Court of Appeals

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2023 UT App 150

State of Utah, Appellee,
v.
Tara Jeanne Amboh, Appellant.

No. 20210678-CA

Court of Appeals of Utah

December 14, 2023

Eighth District Court, Duchesne Department The Honorable Samuel P. Chiara No. 201800404

Freyja Johnson and Emily Adams, Attorneys for Appellant

Stephen Foote, Attorney for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Ryan D. Tenney and Amy J. Oliver concurred.

OPINION

ORME, JUDGE.

¶1 Tara Jeanne Amboh appeals her misdemeanor convictions for operating a motor vehicle without insurance and for interfering with a peace officer, raising four claims of ineffective assistance of counsel. But because the State, represented in this matter by the Duchesne County Attorney (Duchesne County), did not file an appellate brief, Amboh's burden of persuasion is lower than that of a typical appeal in which both sides present argument. We hold that Amboh's challenge to her conviction for operating a motor vehicle without insurance satisfies this lower standard and reverse that conviction, but we affirm her conviction for interfering with a peace officer.

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BACKGROUND^[1]

¶2 Duchesne County charged Amboh with interfering with a peace officer and operating a motor vehicle without insurance, class B and C misdemeanors, respectively.^[2] See Utah Code Ann. § 76-8-305(1) (LexisNexis 2017); id. § 41-12a-302(2)(a) (2018). The case proceeded to a one-day jury trial in which the arresting officer (Officer) was the sole witness called to testify.

¶3 Officer testified that one night in December 2020, he was driving westbound on a highway in rural Utah when he saw Amboh driving eastbound on that same highway. As their vehicles approached each other, Amboh did not turn off her high beam headlights. See id. § 41-6a-1613(1)(c), (3) (2018) (noting that it is an infraction if the operator of a motor vehicle does not use a "low beam distribution of light or composite beam if the vehicle approaches . . . an oncoming vehicle within 500 feet"). And as they passed each other, Officer observed that the license plate on her car was not illuminated. For these reasons, Officer decided to turn around and pull Amboh over.

¶4 A license plate check revealed that the vehicle was registered to another individual. Amboh told Officer that individual was her mother. Officer also testified that the check further showed no insurance on the vehicle, i.e., "No insurance found, second letter sent." Officer explained that the reference to letters meant "that the Department of Motor Vehicles has sent out

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letters stating that they don't have proof of insurance for your vehicle."

¶5 When Officer inquired of Amboh regarding insurance on the car, she stated that the car was insured by State Farm but that she did not have any proof of coverage. Officer told Amboh that if the car was uninsured, he "would have to impound the vehicle," and he then asked her to call her mother to get more information on the vehicle's insurance status. On the phone, Amboh's mother confirmed that the car was insured by State Farm. Officer then called State Farm to verify this assertion. Officer testified that he "spoke with one of the employees for State Farm, gave them the information for the vehicle and the registered owner and they said that the insurance is not active on the vehicle."

¶6 Officer testified that when he informed Amboh that the car was not insured, she became "openly hostile," stating that she was "going to get her lawyer on this" and that she believed they were on reservation land, meaning she was not required to have insurance. She also told Officer "that she had been stopped in Heber for no insurance and Heber told her that all she would have to do is fax over the proof of insurance and they let her go" and that "her mom usually has insurance on the vehicle." Because Officer intended to impound the car, he had Amboh call someone to come pick her up. Officer then returned to his vehicle to call for the impound and to fill out a citation, telling Amboh that he "would be back with her after she called for a ride." Officer was in possession of Amboh's driver license when he returned to his car, which he testified he typically parks between 15 and 20 feet behind the vehicles he pulls over.

¶7 While Officer was still completing the citation, Amboh's ride arrived and pulled up next to her vehicle. Amboh then exited her vehicle and approached her ride. Once Officer realized that Amboh did not intend to direct the driver to park in front of her

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car but to immediately enter the vehicle, he started waving his hands, yelling, "stop" and "Tara, hold on. Tara." Amboh did not respond to his commands and entered the other vehicle, which then drove off. Officer testified that he believed Amboh to be detained and not free to leave at that time. But because her car was parked on the side of the highway, he had to remain in place to alert approaching vehicles of its presence with his lights. So instead of pursuing Amboh himself, he called for another officer to intercept her.

¶8 Officer remained in place until the tow truck arrived and then headed toward the location where the second officer had pulled Amboh's ride over. When he arrived, Officer saw Amboh sitting in the passenger seat. At this point in Officer's testimony, the prosecutor played for the jury footage taken from Officer's body camera of that second encounter.

¶9 The video began with Officer discussing the citation with Amboh, asking her to sign it, and attempting to take her fingerprint.^[3] Amboh refused, stating, "No, I'm not going to do any of your stuff. Sorry. I'm refusing everything." She added, "I'll get everything that the courts need and I will be after you, man." The following exchange then ensued:

OFFICER: Can you step out of the vehicle for me, please

[DRIVER]: Wow.

[AMBOH]: Wow.

OFFICER: Place your hands behind your back.

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[AMBOH]: Hey. Hey.

OFFICER: Place your hands behind your back.

[DRIVER]: You need to calm down.

OFFICER: Place your hands behind your back.

[AMBOH]: Wow.

OFFICER: Stop resisting.

¶10 Recognizing that "[w]e can hear a lot, [but] we can't see a whole lot" in the video, the prosecutor asked Officer to explain what had transpired. Officer stated that he had Amboh step out of the car and face away from him. Because she did not comply with his instruction to place her hands behind her back, he grabbed one of her wrists, and she yelled, "Hey." Officer recounted that when he proceeded to handcuff her, Amboh "pulled her hands away from me and started to yell, as you can hear" and "I had to tell her to stop resisting and pull her hands together to put her into handcuffs."

¶11 On cross-examination, Officer acknowledged that he did not inform Amboh that she was under arrest when he asked her to exit the car and that the video did not show Amboh's hands while he was trying to handcuff her because it was "too dark outside." Officer also confirmed that he did not mention Amboh's resistance to being handcuffed in his written report of the incident.

¶12 At the conclusion of Officer's testimony, the prosecutor rested the State's case. Amboh's trial counsel (Counsel) also rested the defense's case without calling any witnesses. Counsel did not move for a directed verdict, nor did he request a unanimity instruction or any other change to the jury instructions. The trial

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court then read the instructions to the jury, and the case proceeded to closing argument.

¶13 During closing argument, the prosecutor argued to the jury, in relevant part, that circumstantial evidence proved that Amboh drove her mother's car "with the knowledge" that it was uninsured. He pointed to Amboh's statements to Officer that she had previously been pulled over in Heber for lack of insurance and that her mother "usually has insurance," meaning that "she knows that at times [her mother] doesn't have insurance." Regarding the charge for interfering with a peace officer, the prosecutor identified two instances for which the jury could convict Amboh: (1) when she got into the other car and drove away and (2) when she resisted Officer's efforts to handcuff her.

¶14 In response, Counsel argued, among other things, that the prosecution failed to prove that Amboh drove her mother's car knowing that it was uninsured. Regarding the interference charge, Counsel did not contest that Amboh drove off when her ride arrived but argued that "there was no testimony or evidence . . . that the officer gave, asking her to stay, saying that you're detained or arrested or hold on" and that although Officer considered her to be detained, there was reasonable doubt whether she "had knowledge of that." And regarding the handcuffing, Counsel argued that Officer's account that Amboh pulled her arm away was contested because it was not discernible in the video and because Officer made no mention of it in the subsequent written report.

¶15 The jury returned guilty verdicts on both counts. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶16 Amboh alleges four instances of ineffective assistance of counsel. Ordinarily, "when a claim of ineffective assistance of

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counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Elkface, 2023 UT App 24, ¶ 7, 527 P.3d 820 (quotation simplified), cert. denied, 534 P.3d 752 (Utah 2023). But, as discussed in more detail below, because Duchesne County did not file a brief in response to Amboh's arguments, we apply "a lower standard than the typical burden of persuasion on appeal." AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76. Namely, in such cases "an appellant need only establish a prima facie showing of a plausible basis for reversal." Id....