State v. Kirkwood, 20010321-CA.

• Decision Date: 25 April 2002
• Docket Number: No. 20010321-CA.,20010321-CA.
• Citation: 2002 UT App 128,47 P.3d 111
• Parties: STATE of Utah, Plaintiff and Appellee, v. Kent Karl KIRKWOOD, Defendant and Appellant.
• Court: Utah Court of Appeals

47 P.3d 111

2002 UT App 128

STATE of Utah, Plaintiff and Appellee, v. Kent Karl KIRKWOOD, Defendant and Appellant.

No. 20010321-CA.

Court of Appeals of Utah.

April 25, 2002.

Kent R. Hart, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BILLINGS, GREENWOOD, and ORME.

OPINION

GREENWOOD, Judge:

¶ 1 Defendant Kent Kirkwood appeals his conviction for Possession of a Dangerous Weapon by a Restricted Person, a third degree felony, in violation of Utah Code Ann. § 76-10-503(2)(a) (1999). Defendant argues that the trial court committed reversible error under Rule 404(b) of the Utah Rules of Evidence by conditionally ruling that the State could introduce evidence of Kirkwood's past crime if he testified. The State argues that the record is insufficient for this court to review Kirkwood's claim because he did not testify. We agree and therefore affirm.

BACKGROUND¹

¶ 2 In August 2000, Defendant was serving probation for a second degree felony robbery conviction, during which he had used a knife. One condition of his probation was that he not possess any dangerous weapons. Pursuant to Defendant's probation agreement, Officers Hansen and Poor visited Defendant's home to conduct an impromptu search. Defendant voluntarily submitted to a pat down search that failed to uncover any weapons or contraband on Defendant's person.

¶ 3 The officers then searched Defendant's home. Upon searching Defendant's bedroom, the officers discovered a knife on the table next to Defendant's bed. The knife had a curved, four-inch blade with a handle made of wood or bone. Defendant stated that he had used the knife to eat the night before and to cut tape. However, Officer Hansen found no trace of food on the knife or other evidence that Defendant had eaten in the room.

¶ 4 Officer Poor also found a folding knife with a three-inch blade inside a duffel bag. There was nothing else inside the bag. Defendant explained that the knife in the bag belonged to a friend. The officers then arrested Defendant. Upon further questioning, Defendant revealed he also had a multi-purpose tool containing several blades. The officers also discovered a pocket knife located inside a tool box. Other police officers arrived later and searched the entire house, with the exception of kitchen drawers and cupboards, and found no other weapons.

¶ 5 Despite the other knives in his room, the State charged Defendant only for the knife on the table next to the bed and the knife in the duffel bag. At trial, the parties stipulated that Defendant was a restricted person because of his probation status. During opening statements, defense counsel told the jury that Defendant would testify that he intended to use the knife as a utensil and not as a weapon.

¶ 6 On cross-examination of Officer Hansen, defense counsel elicited testimony that Defendant could legally use a knife to eat and as a tool to cut tape. On redirect, the State requested a hearing outside the jury's presence to discuss whether the State could elicit from Officer Hansen that Defendant had committed his robbery offense with the use of a knife. The State claimed that Defendant had opened the door to this type of questioning by distinguishing between the use of the knife as a tool and as a dangerous weapon. The State claimed that because Defendant used a knife in his past crime, he was more likely to possess the knife as a weapon in the present case. Defendant objected on the basis that the evidence was not relevant and would be unfairly prejudicial. The trial court ruled that the State could not ask Officer Hansen about the knife because she did not have personal knowledge of Defendant's past robbery offense.

¶ 7 After the State had rested, however, the trial court changed its ruling. During a hearing outside of the presence of the jury, the trial court ruled that if Defendant testified, the State would be allowed to ask about his use of a knife in his past robbery offense in order to show intent in the present case. The trial court ruled that while the use of the knife was not "overwhelmingly relevant" to determine whether Defendant intended to possess a weapon in this case, it was relevant enough. The trial court further ruled the evidence of the knife in the prior offense was not unfairly prejudicial since the jury already knew Defendant had been convicted of robbery. Finally, the trial court ruled that Defendant's distinction between using the knife as a tool and as a weapon opened the door for the State to ask about the use of a knife in the prior offense.

¶ 8 Following the trial court's ruling, the defense rested without presenting any witnesses. The jury acquitted Defendant of possessing the knife in the gym bag, but convicted him for possessing the knife on the table next to his bed. The trial court sentenced Defendant to a term of up to five years in prison and ordered his sentence to run consecutively to the sentence for his robbery conviction. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶ 9 Because we are persuaded by the State's argument that Defendant failed to preserve his claim, and thus the record is insufficient for appellate review, we address only that issue. We determine whether the record is adequate for appellate review as a matter of law. See State v. Wetzel, 868 P.2d 64, 67 (Utah 1993)

("This Court simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record." (citations and quotations omitted)). We also determine whether, as a matter of law, a defendant must testify to preserve a claim under rule 404(b).

ANALYSIS

¶ 10 The State argues that we should apply the Utah Supreme Court's rationale in State v. Gentry, 747 P.2d 1032, 1036 (Utah 1987), to this case by requiring criminal defendants to testify in order to preserve their objection under Utah Rule of Evidence 404(b)² for appellate review. In Gentry, the supreme court held that under Rule 609(a) of the Utah Rules of Evidence,³ "[t]o preserve for appellate review a claim of improper impeachment with a prior conviction, a defendant must testify." Id. The Gentry court adopted the United States Supreme Court's reasoning in Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984):

Requiring that a defendant testify in order to preserve Rule 609(a) claims, will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making such motions solely to "plant" reversible error in the event of conviction.

Gentry, 747 P.2d at 1036 (quoting Luce, 469 U.S. at 42, 105 S.Ct. at 464).

¶ 11 Only three jurisdictions have addressed whether Luce should be applied to rule 404(b) cases. In United States v. Johnson, 767 F.2d 1259, 1269 (8th Cir.1985), the government filed pretrial motions expressing its intent to introduce other crimes evidence against the defendants if the defendants testified. See id. at 1269. The defendants chose not to testify, allegedly because of the trial court's ruling. See id. The court ruled that even though Luce was decided under rule 609(a)(1), the "logic [of Luce] applies with equal force to motions under rule 404(b)." Id. at 1270. The Johnson court noted that both rules 404(b) and 609(a)(1) require that the trial court balance probative value and unfair prejudice. See id. at 1270 n. 9; Fed.R.Evid. 404(b), 609(a)(1); see also United States v. Ortiz, 857 F.2d 900, 905 (2d Cir.1988)

("[Defendant] cannot now challenge the evidentiary ruling because the [defendant's failure to testify] caused an inadequate record for review. Otherwise, we would be forced to speculate on whether an evidentiary ruling denied [the defendant] a fair trial or was merely harmless error."). Since both rules require a similar balancing test, a reviewing court needs the same amount of detail in the record to review rule 404(b) objections as it does for rule 609 objections.

¶ 12 Alaska has also addressed this issue. In Page v. State, 725 P.2d 1082 (Alaska Ct. App.1986), the court granted the state's motion in limine to introduce past crimes evidence under rule 404(b) if the defendant testified; thus allegedly causing the defendant not to testify. See id. at 1086. The Alaska Court of Appeals ruled that because it did not know what the defendant would have testified to, and did not know if the prosecution would actually address the prior convictions, it did not have an adequate record from which to review the defendant's claims since it would have to speculate. See id. at 1086-87.⁴

¶ 13 We are persuaded by the reasoning of the above authorities, and therefore hold that a defendant must testify to preserve his objection to a conditional in limine ruling under rule 404(b). To hold otherwise would require appellate courts to speculate as to whether the alleged error was harmful.

¶ 14 Accordingly, Defendant's objection is not preserved for appeal in view of his decision not to testify. Otherwise, any possible harm flowing from the trial court's conditional ruling is wholly speculative because the jury never heard the past crimes evidence, never heard Defendant's testimony, and never received a limiting instruction from the trial court. By its nature, an in limine ruling is subject to change by the trial court. See Luce, 469 U.S. at 41,

105 S.Ct. at 463 ("[T]he district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling."). Defendant's refusal to testify deprived the trial court of the opportunity to alter its ruling or issue a limiting instruction that would minimize any unfair prejudice that may have resulted from the admission of the evidence. See State v. Smith, 700 P.2d 1106, 1110 (Utah 1985) (holding that trial court should issue a limiting instruction cautioning the jury to use...