State v. Lesley, 18038
| Decision Date | 14 September 1983 |
| Docket Number | No. 18038,18038 |
| Citation | 672 P.2d 79 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Charles Kermit LESLEY, Defendant and Appellant. |
| Court | Utah Supreme Court |
Ronald J. Yengich, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Salt Lake City, for plaintiff and respondent.
This is an appeal from two convictions, one for production of a controlled substance, a felony, and the other for criminal trespass, a class C misdemeanor. The appellant raises three points of error, claiming that: 1) the trial court erred in instructing the jury on the elements of criminal trespass; 2) the trial court's denial of the appellant's motion to suppress evidence was prejudicial error; and 3) the trial court erred in denying the appellant's motion for a mistrial based on the drowsiness of a juror.
On August 21, 1980, based on an earlier discovery and investigation, a United States Forest Service employee, a Salt Lake County deputy sheriff, and several other police officers entered Red Butte Canyon to seize marijuana plants growing there and other items related to the "farming" enterprise. Red Butte Canyon, located just east of the University of Utah, is a rugged area characterized by steep terrain, dense brush, and a large population of rattlesnakes. On the date in question, the canyon was under the control of the United States Forest Service and was designated as a "no-trespass, entry-by-permission-only" area. A single road with three locked gates provided the only access for vehicles into the canyon. The first gate was posted "No Trespassing"; the others were not so marked. There were no trails designated for public use and it was uncommon for people to be seen there. It was apparently possible to enter the canyon on foot without seeing the signs on the first locked gate.
From a spot approximately a quarter mile from the marijuana farm compound, the deputy sheriff observed the appellant inside the compound. Shortly thereafter, the officer arrived at the compound and asked the appellant to explain his presence. The appellant responded that he was hiking in the area. Then, after having been informed by the Forest Service employee that the appellant was trespassing, the officer arrested the appellant for trespassing and searched his person and his backpack.
Prior to trial, the appellant filed a motion to suppress the evidence regarding the contents of his pack. The appellant claimed that the officer had no probable cause to arrest him, that the search and seizure pursuant to that unlawful arrest was illegal, and that the evidence obtained was therefore inadmissible. The appellant did not challenge the scope of the search, but only its relation to the legality of the arrest. His motion to suppress was apparently denied prior to trial. The appellant did not renew his motion nor did he object in any way to the admission of the evidence in question at his trial.
Near the close of the first day of trial, counsel for the appellant moved for a mistrial on the grounds that a juror had been "nodding off" and, in counsel's view, was "not paying attention" during the trial. The court denied the motion but recessed court early that day with a specific instruction to the juror in question to catch up on his sleep.
Notwithstanding the appellant's failure to object to the jury instruction on criminal trespass, we are required in this case to pass upon and determine his first point of error to prevent manifest injustice. See U.C.A., 1953, § 77-35-19(c). The instruction misstates the law of criminal trespass and is entirely inconsistent with the statutory definition of that offense. See U.C.A., 1953, § 76-6-206. The elements of criminal trespass are set forth in § 76-6-206(2), which reads in pertinent part as follows:
A person is guilty of criminal trespass if, under circumstances not amounting to burglary ...:
(a) He enters or remains unlawfully on property and:
(i) Intends to cause annoyance or injury to any person thereon or damage to any property thereon; or
(ii) Intends to commit any crime, other than theft or a felony; [or]
(iii) Is reckless as to whether his presence will cause fear for the safety of another.
(Emphasis added.) The instruction given to the jury in this case on the elements of criminal trespass reads as follows:
Before you can convict the defendant of the crime of Criminal Trespass, Count II, you must find from the evidence, beyond a reasonable doubt, all of the following elements of that crime:
1. That on or about the 21st day of August, 1980, in Salt Lake County, State of Utah, the defendant, Charles Kermit Lesley, unlawfully entered the property of the U.S. Government.
2. That at the time of said entry the defendant, Charles Kermit Lesley, intended to commit the crime of Production Of A Controlled Substance.
If you believe that the evidence establishes each and all of the essential elements of the offense beyond a reasonable doubt it is your duty to convict the defendant of Criminal Trespass. On the other hand, if the evidence has failed to so establish one or more of said elements, then you must find the defendant not guilty.
(Emphasis added.)
The statutory definition of criminal trespass requires an intent to "commit any crime, other than ... a felony." Thus, it was error for the trial court to predicate the offense of criminal trespass on the crime of production of a controlled substance, which is a felony. Furthermore, there is no evidence anywhere in the record which would support a charge to the jury on the offense of criminal trespass. Thus, the appellant's conviction of that offense must be reversed.
The appellant's second contention is that the denial of his pretrial motion to suppress the evidence seized from his pack during the search incident to his arrest was error. The appellant has not provided this Court with any information regarding a hearing on that motion or the evidence offered in support thereof. Furthermore, the trial transcript shows that his counsel failed to make any objection to the introduction of such evidence at trial. Thus, our review of this question depends on whether the issue has been preserved for appeal. The Utah Rules of Evidence prohibit the reversal of a judgment based on the erroneous admission of evidence unless
(a) there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection, and
(b) the court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and probably had a substantial influence in bringing about the verdict or finding.
Utah R.Evid. 4. This Court has discretion to review the allegedly erroneous admission of evidence when the grounds of objection are not clearly or correctly stated. However, the Rules do not state that we may review alleged error when no objection at all is made at the trial level. See, e.g., State v. McCardell, Utah, 652 P.2d 942 (1982). Moreover, "the facts are not such that great and manifest injustice would be done if this Court does not entertain the issue sua sponte as an exception." State v. Pierce, Utah, 655 P.2d 676, 677 (1982).
The appellant's position appears to be that his filing of a pretrial motion to suppress, and its denial, relieved him from the necessity of objecting to the evidence at trial. This raises a question of first impression in this jurisdiction, and we hold that, under Rule 4 of the Utah Rules of Evidence, a specific objection is required even where a pretrial motion to suppress has been made. The reasons for such a rule are well illustrated in this case. The judge who heard the motion to suppress was not the trial judge, and there is no indication in the record before us that an evidentiary hearing on the motion was conducted. There are no findings of fact, conclusions of...
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Case Summaries
...105 (Utah Ct. App. 1987).) Preservation of Fourth Amendment Objections for Appeal The Court of Appeals (J. Garff) applied State v. Lesley, 672 P.2d 79 (Utah 1983) to hold that, in search and seizure cases, a fourth amendment objection to illegally seized evidence must be renewed at trial, e......