State v. Crowley

• Decision Date: 13 February 2014
• Docket Number: No. 20120128–CA.,20120128–CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Joseph Brandon CROWLEY, Defendant and Appellant.
• Court: Utah Court of Appeals

320 P.3d 677

754 Utah Adv. Rep. 5

STATE of Utah, Plaintiff and Appellee,

v.Joseph Brandon CROWLEY, Defendant and Appellant.

No. 20120128–CA.

Court of Appeals of Utah.

Feb. 13, 2014.

Peter A. Daines and Heather J. Chesnut, for Appellant.

Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, for Appellee.

Judge MICHELE M. CHRISTIANSEN authored this Opinion, in which Judges GREGORY K. ORME and JAMES Z. DAVIS concurred.

Opinion

CHRISTIANSEN, Judge:

¶ 1 Defendant Joseph Brandon Crowley appeals from convictions for theft by receiving stolen property and theft by deception following a jury trial. We reverse and remand for a new trial.

BACKGROUND

¶ 2 “On appeal from a jury verdict, we view the evidence and all reasonable inferences in a light most favorable to that verdict and recite the facts accordingly.” State v. Pinder, 2005 UT 15, ¶ 2, 114 P.3d 551 (citation and internal quotation marks omitted). The charges filed against Defendant stem from the theft of an iPod from a parked vehicle. The evidence reveals that Defendant sold that iPod at a pawnshop approximately two weeks after it had been stolen. The pawn shop clerk recorded Defendant's personal information together with a description of the iPod and its serial number into a database as required by law. The clerk also created a pawn slip with the same information which Defendant signed and marked with his fingerprint. After the victim reported the iPod stolen, the police used the pawnshop information to identify Defendant as the seller of the iPod. Two fingerprint experts from the police forensic unit agreed that the fingerprint on the pawnshop slip matched Defendant's fingerprint.

¶ 3 The State charged Defendant with one count of theft by receiving stolen property, seeUtah Code Ann. § 76–6–408 (LexisNexis Supp.2009), and one count of theft by deception, see id.§ 76–6–405 (2008). At the conclusion of Defendant's trial, the State argued to the jury that the evidence demonstrated that the iPod had been stolen and that Defendant possessed it and had pawned the item shortly after the theft took place. The State also told the trial judge, outside the presence of the jury, that the State could not “prove that he actually stole it” but “only ha[d] evidence to show that [Defendant] ... possessed” the iPod in the “moments” before Defendant pawned it. Accordingly, to connect Defendant to the theft, the State relied on the presumption of law outlined in jury instruction 33 (Instruction 33). Instruction 33 provides,

The law presumes that possession of property recently stolen, when no satisfactory explanation of such possession is made, shall be deemed prima facie evidence that the person in possession stole the property. While the law regards the facts giving rise to the presumption as evidence of the presumed fact, the presumed fact must on all evidence be proved beyond a reasonable doubt.

Defendant objected to Instruction 33, but the trial court overruled the objection. The jury convicted Defendant on both counts, and the court sentenced him to probation. Defendant timely appeals.

ISSUES AND STANDARD OF REVIEW

¶ 4 Defendant challenges his convictions on two grounds. First, Defendant argues that Instruction 33 unconstitutionally shifted the burden of proof from the State to Defendant by instructing the jury to presume that Defendant stole the iPod once the State proved that he possessed it unless Defendant offered a satisfactory explanation for his possession. “[T]he propriety of a jury instruction presents a question of law which we review for correctness.” State v. Tucker, 2004 UT App 217, ¶ 4, 96 P.3d 368 (alteration in original) (citation and internal quotation marks omitted). Second, Defendant argues that Instruction 33 confused and misled the jury by instructing the jury to presume that Defendant stole the iPod, even though the State did not charge Defendant with the actual theft of the iPod. Because we reverse his convictions based on his claim that Instruction 33 unconstitutionally shifted the burden of proof to him, we need not address Defendant's second claim. See Carter v. State, 2012 UT 69, ¶ 16 n. 7, 289 P.3d 542.

ANALYSIS

I. Defendant's Claim Is Preserved.

¶ 5 Initially, the State argues that Defendant failed to preserve his claim that Instruction 33 impermissibly shifted the burden of proof to him. “As a general rule, in order to preserve an issue for appeal[,] the issue must be presented to the [trial] court in such a way that the [trial] court has an opportunity to rule on that issue.” State v. Moa, 2012 UT 28, ¶ 23, 282 P.3d 985 (first alteration in original) (citation and internal quotation marks omitted). Before the close of trial, Defendant's trial counsel objected to Instruction 33 on several grounds. First, defense counsel argued that Instruction 33 was inapplicable to this case because the presumption outlined in the instruction referred only to the crime of theft and not to the crimes of theft by receiving stolen property and theft by deception. Next, defense counsel argued that Instruction 33's presumption violated his right to remain silent “and his right not to give evidence against himself” because Instruction 33 put “him in a position where he either ha[d] to testify and give a satisfactor[y] explanation, or ... not testify and have this legal presumption against him.” After hearing the State's response, the court overruled defense counsel's objections.

¶ 6 Although defense counsel did not use the words “burden of proof” or “burden-shifting” in raising an objection to Instruction 33, she clearly objected to the burden-shifting effect of Instruction 33: that if Defendant did not provide a “satisfactor[y] explanation,” he would “have this legal presumption against him.” It is therefore evidentfrom the record that defense counsel sufficiently raised this issue to a level of consciousness that allowed the trial court to consider it. See Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60, ¶ 57, 321 P.3d 1054, 2013 WL 5587843 (“An issue may be raised directly or indirectly, so long as it is raised to a level of consciousness such that the trial judge can consider it.” (citation and internal quotation marks omitted)); see also Pratt v. Nelson, 2007 UT 41, ¶ 24, 164 P.3d 366 (concluding that an issue was preserved because the trial court “was aware” of the issue and specifically resolved it in a “deliberate manner,” even though the trial “court did not have the benefit of the [appellants'] argument”); Arbogast ex rel. Arbogast Family Trust v. River Crossings, LLC, 2008 UT App 277, ¶ 11, 191 P.3d 39 (determining that an issue was preserved because “the trial court specifically considered [the] issue,” even where the appellant's “trial counsel did very little to raise the ... issue before the trial court”), aff'd,2010 UT 40, 238 P.3d 1035. It is further evident that the trial court did consider and rule on the burden-shifting issue. Specifically referring to the presumption provided in Instruction 33, the court explained that it had added language to the jury instructions indicating that the presumed fact must on “all evidence be proved beyond a reasonable doubt” by the State. The court then determined that, with the added language, “it's still the burden of the State” to prove Defendant's guilt and ruled, “Based on the instruction in its entirety I find that it meets constitutional muster....” Accordingly, we conclude that Defendant adequately preserved the issue for our review.

II. Submission of Instruction 33 to the Jury Was Error and Prejudiced Defendant.

A. Instruction 33

¶ 7 The United States Supreme Court has held that “[t]he Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) (citation and internal quotation marks omitted); accord State v. Austin, 2007 UT 55, ¶ 6, 165 P.3d 1191 (“The government must prove every element of a charged offense beyond a reasonable doubt.”). “This bedrock, axiomatic and elementary [constitutional] principle prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Francis, 471 U.S. at 313, 105 S.Ct. 1965 (alteration in original) (citation omitted).

¶ 8 “In determining whether a jury instruction relieves the State of this burden, ‘[t]he threshold inquiry’ requires that we ‘determine the nature of the presumption it describes.’ ” State v. Kelson, 2012 UT App 217, ¶ 16, 284 P.3d 695 (alteration in original) (quoting Francis, 471 U.S. at 313–14, 105 S.Ct. 1965),cert. granted,298 P.3d 69 (Utah 2013). The reviewing court must decide whether the jury instruction imposes a mandatory presumption or merely allows for the jury to draw a permissive inference. Id. “A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts.” Francis, 471 U.S. at 314, 105 S.Ct. 1965. Mandatory presumptions violate due process when “they relieve the State of the burden of persuasion on an element of an offense.” Id. By contrast, a “permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” Id. Because the State is still required “to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved,” permissive inferences do not violate the Due Process Clause. Id.

¶ 9 Our case law reveals that this “threshold inquiry” has already been completed relative to the specific language in the first sentence of Instruction 33 that sets out the presumption. The first sentence of Instruction 33 reads, “The law presumes that possession of property recently...