State v. Jensen
| Decision Date | 25 July 2003 |
| Docket Number | No. 20020359-CA.,20020359-CA. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Lavar T. JENSEN, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Heather Johnson, L. Monte Sleight, and Rudy J. Bautista, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, Salt Lake City, for Appellee.
Before Judges BILLINGS, GREENWOOD, and ORME.
¶ 1 Lavar T. Jensen appeals his conviction of violating a protective order, a class A misdemeanor, in violation of Utah Code Ann. § 76-5-108 (1999). We reverse and remand for a new trial.
¶ 2 On May 25, 1999, the trial court granted the victim in this case a protective order against Jensen. In June 2001, the prosecution charged Jensen with violating the protective order. He pleaded not guilty, and trial was held on October 16, 2001, with jury selection occurring earlier that day. After voir dire, the prosecutor used all three of her peremptory challenges on men. Jensen objected on the basis that the challenges were based on the gender of the jurors. The trial court asked the prosecutor to explain the challenges. She replied:
I didn't even initially realize that all three of them were men, all three of my challenges were men until [defense counsel] just pointed it out. I have on my notations that the three struck [sic] were part of the protective order, and logically I assumed that usually they would be on defendant's side, since more than likely than not men are the respondents to protective orders, other than women. Those were my reasoning [sic].... I wasn't looking for men to strike. I left—I just went in order of the ones that were most likely to be called, and I was just looking through that, and that's why I left [a different male venire member] on. I was just going through. The next person that was part of a protective order was—the first ones [sic] I have noted is [the first male involved in a protective order]. The one after that, he was part of a protective order.
The trial court found that the State articulated a non-discriminatory reason and upheld the challenges.
¶ 3 Before the calling of any witnesses, Jensen was informed that the victim was not present to testify for the prosecution. Jensen immediately moved for a continuance, emphasizing that the prosecution had subpoenaed the victim, and that her presence as a witness was crucial to his defense. The trial court denied the motion.
¶ 4 After the State rested its case, Jensen moved for a directed verdict on the basis that the State did not prove Jensen was "properly served" with the protective order. As proof of proper service, the State had submitted a five-page document (the protective order document) into evidence. The first four pages contain a standard protective order. The first page names the victim as the petitioner and Jensen as the respondent. Boxes checked next to "Petitioner" and "Respondent" on that page indicate that both Jensen and the victim "were in attendance" at the protective order hearing. Page four is dated May 25, 1999, and is signed by a district court judge and deputy court clerk, with a State of Utah seal next to the clerk's signature. Page five contains the signature, dated May 25, 1999, of a district court commissioner. That page also indicates, above a signature with Jensen's name marked "Respondent," that "[b]y this signature, Respondent approves the form, and accepts service, of this Protective Order and waives the right to be personally served." Based on the protective order document, the trial court denied Jensen's motion for a directed verdict.
¶ 5 The jury convicted Jensen for violating the protective order. Jensen now appeals.
¶ 6 Jensen argues he was not "properly served" with a protective order, as required by Utah Code Ann. § 76-5-108 (1999). In doing so, Jensen claims that proper service is an element of the offense of violating a protective order. Which elements constitute an offense is a question of statutory interpretation, which we review for correctness. See State v. McKinnon, 2002 UT App 214, ¶ 3, 51 P.3d 729
. Jensen also claims the trial court erred in admitting the last page of the protective order document under rule 902 of the Utah Rules of Evidence and insists that without that page, the evidence was insufficient to support his conviction. To determine whether the trial court correctly admitted the page in question, we apply a correction of error standard. See State v. Silva, 2000 UT App 292, ¶ 10, 13 P.3d 604. Ultimately, under the facts presented, whether Jensen was "properly served" is a question of law we review for correctness. See Reed v. Reed, 806 P.2d 1182, 1184 n. 3 (Utah 1991).
¶ 7 Jensen also contends that the prosecution's stated reason for striking two potential jurors was gender-discriminatory, in violation of his equal protection rights. "Absent a showing of clear error, we will not overturn a trial court's determination concerning the discriminatory intent embodied in a party's explanation for the exercise of a peremptory challenge." State v. Chatwin, 2002 UT App 363, ¶ 5, 58 P.3d 867.
¶ 8 Jensen claims the prosecution was required to prove proper service as an element of the offense of violating a protective order. The only evidence offered by the prosecution to show service was the protective order document. Jensen argues that page five of that document was inadmissible. Without page five, Jensen insists, the evidence was insufficient to prove beyond a reasonable doubt that he was "properly served." Alternatively, Jensen argues all five pages of the protective order document were insufficient to prove proper service.
¶ 9 Under Utah Code Ann. § 76-5-108 (1999), any person subject to a protective order "who intentionally or knowingly violates that order after having been properly served, is guilty of a class A misdemeanor." (Emphasis added.) Although the prosecution must prove every element of a crime to sustain a conviction, see Utah Code Ann. § 76-1-501 (1999),1 the State argues proper service is not an element of the offense. The State is incorrect. In State v. Rudolph, 970 P.2d 1221, 1233 (Utah 1998), the Utah Supreme Court plainly concluded that "an actor must have been `properly served' with the protective order before he or she can be convicted of violating Utah Code Ann. § 76-5-108." Thus, Jensen's conviction required proof of proper service.2
¶ 10 Jensen claims the trial court erred in admitting page five—the final page—of the protective order document. Because the prosecution offered no evidence of authenticity, aside from the protective order document itself, the trial court correctly considered its admission under rule 902 of the Utah Rules of Evidence. Under rule 902, a certified copy of a public record, bearing the proper seal and signature, is a self-authenticating document requiring no extrinsic evidence of authenticity for admissibility. See Utah R. Evid. 902(1), (4). Here, Jensen does not challenge the admissibility of the first four pages. Jensen only challenges admission of the fifth page as self-authenticating, claiming that page five is entirely separate from the first four pages, which include the State's seal and court clerk's signature on page four.
¶ 11 A paper attached to a certified document must be "readily identifiable" with that document to be included in the certification. Miller v. State, 563 N.E.2d 578, 584 (Ind. 1990). But see State v. Smith, 63 Ohio App.3d 71, 577 N.E.2d 1152, 1156 (1989) (). Here, although page five does not contain a separate seal or court clerk signature, it is readily identifiable with the first four pages. Most importantly, the first page has a checked box signifying Jensen's presence at the protective order hearing. Consistent with this indication of Jensen's presence, page five contains a signature bearing Jensen's name, whereby the signee "accepts service, of this Protective Order and waives the right to be personally served." (Emphasis added.) Thus, we conclude the trial court correctly interpreted and applied rule 902 in admitting page five as part of a self-authenticating document.
¶ 12 Finally, the protective order document, including page five, proves that Jensen was "properly served." The document indicates Jensen attended the protective order hearing, thus putting him on notice of the protective order. Further, page five plainly states that Jensen accepted service and waived any other right to personal service. The evidence was therefore sufficient to convict Jensen of violating a protective order.3
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