State v. Cox

• Decision Date: 23 August 2012
• Docket Number: No. 20100947–CA.,20100947–CA.
• Citation: 2012 UT App 234,286 P.3d 15,715 Utah Adv. Rep. 37
• Parties: STATE of Utah, Plaintiff and Appellee, v. Michelle Ann COX, Defendant and Appellant.
• Court: Utah Court of Appeals

286 P.3d 15

715 Utah Adv. Rep. 37

2012 UT App 234

STATE of Utah, Plaintiff and Appellee,

v.Michelle Ann COX, Defendant and Appellant.

No. 20100947–CA.

Court of Appeals of Utah.

Aug. 23, 2012.

Stephen W. Howard, Salt Lake City, for Appellant.

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.

Before Judges McHUGH, VOROS, and ROTH.

MEMORANDUM DECISION

ROTH, Judge:

¶ 1 Michelle Ann Cox appeals from her convictions for forgery and theft by deception on the basis that Jury Instruction 33 unconstitutionally shifted the burden of proof for an element of each of the crimes to the defense. She also asserts that the theft by deception conviction should have been sentenced as a class B misdemeanor rather than as a class A misdemeanor. We affirm the convictions but remand for resentencing on the theft by deception offense.

¶ 2 Cox did not preserve the jury instruction issue in the trial court, and therefore she challenges it under the doctrines of manifest injustice and ineffective assistance of counsel. When a claim of error regarding a jury instruction is made for the first time on appeal, appellate courts review the instruction for “manifest injustice.” SeeUtah R. Crim P. 19(e) (“Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error except to avoid a manifest injustice.”). “Manifest injustice is synonymous with the plain error standard.” State v. Jimenez, 2012 UT 41, ¶ 20, 284 P.3d 640. Thus, to establish manifest injustice, Cox must show that “(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome.” ¹See State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179 (internal quotation marks omitted) (establishing standard for plain error review). To prove that she received ineffective assistance of trial counsel, Cox must demonstrate that her attorney's performance was both deficient and prejudicial. Seeid. ¶ 37. To prevail on appeal, Cox must establish all the elements of either test. See State v. Casey, 2003 UT 55, ¶ 41, 82 P.3d 1106 (“[I]f any one of th[e three] requirements is not met, plain error is not established.”); State v. Welborn, 2012 UT App 5, ¶ 5, 268 P.3d 881 (“A defendant has not established ineffective assistance if he fails to demonstrate that both elements have been met.”).

¶ 3 Jury Instruction 33 informed the jury of the affirmative defense the parties have referred to as “honest belief”:

It is a defense to the charge of theft by deception that the Defendant:

(a) acted under an honest claim of right to the property or services involved; or

(b) acted in the honest belief that she had the right to obtain or exercise control over the property or service involved; or (c) obtained or exercised control over the property or service honestly believing that the owner, if present, would have consented.

Evidence of this defense must be presented by the defense, and if presented, the State retains its burden of proof beyond a reasonable doubt on all elements of the offense charged.

(Emphases added.) The language in this instruction tracks the statutory language in Utah Code section 76–6–402, which sets out the presumptions and defenses available for theft charges generally. See generallyUtah Code Ann. § 76–6–402(3) (2008) (outlining the honest belief defense for charges under the “Theft” part of the criminal code); id. §§ 76–2–304, –308 (classifying mistake of fact as an affirmative defense).² To assert an affirmative defense, such as honest belief, the “defendant's burden of proof is quite limited. He need not [even] prove the defense ... by a mere preponderance”; rather, the defendant must only “provide some reasonable basis” in the evidence for giving the instruction. State v. Garcia, 2001 UT App 19, ¶ 8, 18 P.3d 1123 (alteration and omission in original) (emphasis omitted). Once an affirmative defense has been asserted, the prosecution has the burden of “disprov[ing] the existence of [the] affirmative defense [ ] beyond a reasonable doubt.” State v. Drej, 2010 UT 35, ¶ 15, 233 P.3d 476 (internal quotation marks omitted); see alsoUtah Code Ann. § 76–1–502 (explaining that the State is required to negate a defense “[b]y proof [if] ... [t]he defense is an affirmative defense, and the defendant has presented evidence of such affirmative defense”).

¶ 4 In the case of theft by deception, however, the lack of an honest belief that the defendant was entitled to the property she obtained—which the defendant typically raises as an affirmative defense, thereby shifting the burden to the State to disprove—is actually an element of the crime that the prosecution must prove in the first instance.³See generallyUtah Code Ann. § 76–6–405(2)(a) (Supp.2012) (defining theft by deception as “obtain[ing] or exercis[ing] control over property of another person by deception and with a purpose to deprive the other person of property” (emphasis added)); id. § 76–6–401(5)(a)–(b) (2008) (defining deception to include “creat[ing] or confirm[ing] by words or conduct an impression of ... fact that is false and that the actor does not believe to be true and that is likely to affect the judgment of another” or failing to correct such an impression when “the actor does not now believe [that impression] to be true” (emphasis added)). In other words, the State had to affirmatively prove beyond a reasonable doubt that, when Cox presented the check for $360 at Mountain America Credit Union, she created an impression, which she knew was false, that she was authorized to cash the check and receive the funds. Requiring Cox to put on evidence of the affirmative defense of honest belief therefore improperly shifted to the defense the State's affirmative burden to present evidence proving that Cox used deception. See generally Drej, 2010 UT 35, ¶ 14, 233 P.3d 476 (noting that it is a “basic constitutional principle that the state must prove ‘every fact necessary to constitute the crime with which [the defendant] is charged’ ” (alteration in original) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970))). Therefore, honest belief is not an affirmative defense to theft by deception, though it may be to other theft crimes. Seeid. ¶ 20 (cautioning that constitutional requirements cannot be disregarded simply because the “[statutory] language ... belies a statute's actual function”); cf. State v. Palmer, 2009 UT 55, ¶ 12, 220 P.3d 1198 (noting that in a case where the state was seeking to enhance the penalty for a crime, the constitution required that the state still bear the burden of proving the enhancement facts beyond a reasonable doubt, even though those facts were labeled by statute as “sentencing factors”). Thus, in this regard, the instruction to the jury that “[e]vidence of this defense must be presented by the defense” was erroneous.⁴

¶ 5 We need not decide whether the error was obvious or invited,⁵ or whether counsel was deficient in failing to object to it because we conclude that the error was harmless. “The concept [of burden of proof] encompasse[s] two distinct burdens: the burden of persuasion ... and the burden of production....” Schaffer v. Weast, 546 U.S. 49, 56, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005); Searle v. Milburn Irrigation Co., 2006 UT 16, ¶ 49 n. 2, 133 P.3d 382 (“[B]urden of proof is a catchall term that encompasses both the burden of persuasion and the burden of production and generally refers to ‘[a] party's duty to prove a disputed assertion or charge.’ ” (second alteration in original) (quoting Black's Law Dictionary 190 (7th ed. 1999))). The burden of production refers to “ ‘[a] party's duty to introduce enough evidence on an issue to have the issue decided by the fact-finder.’ ” Searle, 2006 UT 16, ¶ 49 n. 2, 133 P.3d 382 (alteration in original) (quoting Black's Law Dictionary 190 (7th ed. 1999)). The burden of persuasion is “ ‘[a] party's duty to convince the fact-finder to view the facts in a way that favors that party.’ ” Id. (alteration in original) (quoting Black's Law Dictionary 190 (7th ed. 1999)).

¶ 6 When a person is charged with a criminal offense, the State bears the entire burden of proof with respect to each element of the charged offense, and the State fulfilled that burden with respect to the theft by deception charge here, including the element that Cox did not have an honest belief that she was entitled to the check and the funds it represented, as to which the State presented substantial evidence. The State produced the testimonies of Officer Brendon Kirkwood and the check fraud investigator at Mountain America to establish this element. Officer Kirkwood's testimony consisted largely of his account of Cox's inconsistent explanations to him of how she came into possession of the check. The officer testified that Cox first claimed that she received it from her neighbor as payment for salon services Cox provided for a party of twelve, but after her supervisor failed to verify that story, Cox claimed that her neighbor asked her to cash the check, which the neighbor had received in exchange for pumping gas for an unknown woman. Finally, when the neighbor's bank records did not support the gas payment story, Cox stated that her neighbor asked her to cash the check, which the neighbor told her was written by her mother, because the neighbor had account issues that prevented her from drawing the funds herself. Officer Kirkwood also testified that Cox informed him that when she received the check, she “filled out her name on the-to pay to the order of, and then the [written] amount.” The check fraud investigator testified that the endorsement “signature [on the back of the check] of Michelle Cox more closely resembles the written out Michelle Cox on the payee line [on the front of the check].” Thus, even though Jury Instruction 33 incorrectly informed...