State v. Davie

• Decision Date: 03 November 2011
• Docket Number: No. 20100189–CA.,20100189–CA.
• Citation: 2011 UT App 380,694 Utah Adv. Rep. 40,264 P.3d 770
• Parties: STATE of Utah, Plaintiff and Appellee,v.Grace Helen DAVIE, Defendant and Appellant.
• Court: Utah Court of Appeals

264 P.3d 770

694 Utah Adv. Rep. 40

2011 UT App 380

STATE of Utah, Plaintiff and Appellee,

v.Grace Helen DAVIE, Defendant and Appellant.

No. 20100189–CA.

Court of Appeals of Utah.

Nov. 3, 2011.

J. Bryan Jackson, Cedar City, for Appellant.Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.Before Judges McHUGH, VOROS, and ROTH.

MEMORANDUM DECISION

VOROS, Judge:

¶ 1 Defendant Grace Helen Davie appeals her conviction and sentence for witness tampering, a third-degree felony, and assault, a class A misdemeanor, see Utah Code Ann. § 76–5–102 (2008) (assault); id. § 76–8–508(1) (witness tampering). She contends that the witness tampering statute is unconstitutionally overbroad and vague, that the evidence was insufficient to find her guilty of assault, and that her sentence was cruel and unusual. We affirm.

¶ 2 The witness tampering charge arose out of a fight between Davie's son, Jeremiah McFall, and his wife, Jennifer McFall, in July 2008.¹ The couple had an argument one evening that culminated in front of their house as Jeremiah tried to physically stop Jennifer from leaving and force her to go inside the house. A neighbor saw the fight and called the police, who arrested Jeremiah. Jennifer gave a statement to Officer Vincent Cox about the incident.

¶ 3 That evening, Jennifer called Davie to let her know that her son was in jail. Davie said she would drive to the jail the next day and invited Jennifer to go along and let Jeremiah's probation officer know what happened. Jennifer agreed. Davie called Jennifer several times that night, asking Jennifer if she was sure that the fight had happened the way she described and that Jeremiah had been abusive. She also told Jennifer that she could change the statement she had given to Officer Cox.

¶ 4 On the drive to the jail the next morning, Davie again asked Jennifer if she was sure Jeremiah was being abusive. Davie told Jennifer that Jeremiah could be sent to prison, and that if he was, he would kill himself. Davie then asked Jennifer if she knew what “recant” meant and explained that she could go back to the officer and tell him she had not given him all the facts. Davie asked Jennifer if she would keep Jeremiah out of prison if she had the chance. She told Jennifer to “be imaginative.” Davie continued, “hypothetically—and I'm not telling you to do this, but hypothetically, what if you were trying to cut yourself, and Jeremiah was trying to get a knife away from you?” When Jennifer protested, Davie repeated the “hypothetical” scenario and then prodded her further:

[I]f that could keep him from going to prison, do you think you would be able to go and tell them that you were confused on your statement; that you were upset and emotional, and you were embarrassed to let them know that you cut yourself and that he was just trying to protect you from yourself?

Davie then reassured Jennifer that she would not get into trouble for changing her statement, and suggested that she start by telling Jeremiah's probation officer that she wanted to recant. Davie also added that she (Davie) had been in trouble for witness tampering before and that if anyone asked, Jennifer should say that Davie had not told her to change her statement.

¶ 5 At the police station, Jennifer spoke with the probation officer, who told her that she would have to talk to Officer Cox. On the ride home, when Jennifer expressed concern that Officer Cox might not believe her, Davie again told her to “be imaginative,” that Jeremiah would kill himself if he went to prison, and that if Jennifer loved him, she “wouldn't let something like that happen to him.” When Jennifer met with Officer Cox, he was suspicious of her new story. He asked Jennifer if Davie had told her to change her statement. Jennifer acknowledged that Davie had, adding that Davie also told her that “she's not telling me to do that.”

¶ 6 At trial, Davie gave a different version of events. She testified that, after learning of Jeremiah's arrest, she decided to drive to the jail to arrange bail. Jennifer asked to go along. On the ride to the jail, Jennifer told Davie that she had been trying to cut herself the night before. Then Jennifer asked, “[W]hat if Jeremiah was trying to take the razorblade away from [me]?” Davie told her that if that was the case, Jennifer should tell the probation officer. However, Officer Cox testified that after Davie was arrested, she admitted that she had told Jennifer that she could recant if her original statement was not true, but denied that she had asked Jennifer to be imaginative or said that Jeremiah would kill himself.

¶ 7 The court found Jennifer's testimony credible and Davie's testimony incredible. It determined that Davie's testimony was inconsistent and conflicted with that of police officers who also testified at trial. It further found that Davie had incentives to lie while the police officers did not. Therefore, the court found Davie guilty of witness tampering.

¶ 8 Davie's assault charge arose out of a fight between Jeremiah and Jennifer in October 2008. The couple was living in a trailer on Davie's property. During an argument one night, Jeremiah began to beat Jennifer. At one point, Davie came in and pulled Jeremiah off Jennifer. The three of them began to argue, and Davie hit Jennifer in the face and kicked her. Jeremiah pulled Davie away from Jennifer, but then he started beating Jennifer again. Jennifer testified that for about thirty to forty-five minutes, the two would alternate beating her and then pulling the other assailant away. Davie warned Jennifer not to tell anyone about the incident and stated that if Jeremiah went to jail, Davie would make sure that Jennifer and her family “paid” for it. Jeremiah then drove Jennifer to a gas station and dropped her off.

¶ 9 At the gas station, the attendant noticed something was wrong with Jennifer and notified an off-duty police officer who happened to be in the store. After speaking with Jennifer, the officer called an on-duty police officer. In Jennifer's statement to the on-duty officer, she described having been beaten only by Davie; out of fear of Davie's threats, she left Jeremiah out of her account. Later that day, she spoke with Jeremiah several times on the phone and told him what she had reported to the police.

¶ 10 The next day, Jeremiah told a police officer that he saw his mother beat Jennifer and that his mother told him to deny having been at the house the night of the incident.² However, at trial, Jeremiah denied seeing his mother beat Jennifer and testified that Jennifer had no injuries when he dropped her off at the gas station. He claimed to have made his earlier statement at Jennifer's request and because he did not want to go to jail.

¶ 11 At trial, Davie denied beating Jennifer and said she believed Jeremiah had done it, although she had not seen him do it. However, when she was arrested, she had reported to the police that Jeremiah had not been there that night.

¶ 12 In its oral ruling, the trial court stated that, while aspects of Jennifer's trial testimony appeared to be inaccurate, she was nevertheless credible with respect to the issues central to the case. In contrast, the court found that both Jeremiah's and Davie's trial testimony lacked credibility. Therefore, the court found Davie guilty of assault.

¶ 13 The court sentenced Davie to concurrent sentences of zero-to-five years in prison and a fine of $5,000 on the witness tampering conviction, and one year in jail and a fine of $2,500 on the assault conviction. The court stayed the sentence subject to thirty-six months of successful probation. One of the terms of probation was that Davie serve 120 days in jail, ninety days of which would be stayed if Davie successfully served thirty days in jail in five-day increments. The court also ordered Davie to use only one physician and one pharmacist while on probation and to report her prescriptions to her probation officer. Davie completed the thirty-day sentence and filed a timely appeal challenging her conviction and sentence.

¶ 14 On appeal, Davie contends that the witness tampering statute is unconstitutionally overbroad and vague. “The overbreadth and vagueness doctrines are related yet distinct.” American Booksellers v. Webb, 919 F.2d 1493, 1505 (11th Cir.1990). The overbreadth doctrine is rooted in the First Amendment while the vagueness doctrine is rooted in the Due Process Clauses of the Fifth and Fourteenth Amendments. See United States v. Williams, 553 U.S. 285, 292, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). A statute is overbroad “if in its reach it prohibits constitutionally protected conduct.” Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). “A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).

¶ 15 The State counters that Davie's constitutional challenges are unpreserved. We agree. “As a general rule, claims not raised before the trial court may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346; see also State v. Brown, 856 P.2d 358, 359–60 (Utah Ct.App.1993). “The issue must be raised to a level of consciousness that allows the trial court an adequate opportunity to address it.” State v. Worwood, 2007 UT 47, ¶ 16, 164 P.3d 397 (citation and internal quotation marks omitted). “[T]he preservation rule applies to every claim, including constitutional questions....” Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. Therefore, “[w]hen a party raises an issue on appeal without having properly preserved the issue below, we require that the party articulate an appropriate justification for appellate review; specifically, ...