State v. Maese, 2010 UT App 106 (Utah App. 4/29/2010)
| Decision Date | 29 April 2010 |
| Docket Number | Case No. 20090084-CA |
| Citation | 2010 UT App 106 |
| Parties | State of Utah, Plaintiff and Appellee, v. S. Steven Maese, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Appeal from the Third District, Salt Lake Department, 061906590 The Honorable Randall N. Skanchy.
S. Steven Maese, Holladay, Appellant Pro Se.
Mark L. Shurtleff and Laura B. Dupaix, Salt Lake City, for Appellee.
Before Judges Davis, Thorne, and Greenwood.1
¶ 1 Defendant S. Steven Maese appeals from his convictions for one count of pattern of unlawful activity, see Utah Code Ann. § 76-10-1603 (2008), and four counts of exploiting prostitution, see id. § 76-10-1305. Defendant argues that the trial court erred by failing to rule on Defendant's motion for a bill of particulars and inadequately instructing the jury on the meaning of jury unanimity and the elements of the pattern of unlawful activity charge. Defendant also argues that the evidence at trial was insufficient to support three of his four convictions of exploiting prostitution. We affirm.
¶ 2 Defendant and Tiffany Curtis formed and operated an escort agency called The Doll House. In April 2006, sheriff's deputies executed a search warrant on Curtis's home. In October 2006, Defendant and Curtis were each charged with one count of pattern of unlawful activity, four counts of exploiting prostitution, and one count of money laundering. At a preliminary hearing, Defendant and Curtis were bound over for trial as charged. Curtis ultimately entered into a plea agreement, and Defendant's case proceeded to trial.
¶ 3 On the scheduled first day of trial, Defendant asked to discharge his lawyer, and the trial court granted his counsel's motion to withdraw. The trial court set the matter for another jury trial setting on July 10 and 11, 2008, with a pretrial on July 7, 2008. Thereafter, Defendant filed a motion for a bill of particulars and a motion to disqualify the Salt Lake County district attorney's office. At the pretrial hearing, the trial court held oral argument on both motions, after which the court indicated it would render a written opinion on the pending motions prior to the scheduled trial. That same day, the court issued a memorandum decision and order wherein the court denied Defendant's motion to disqualify. The district court did not include in that memorandum decision any reference to Defendant's motion for a bill of particulars.
¶ 4 On the day set for trial, the trial court asked the parties if they were ready to proceed with the trial, both affirmed they were and the jury trial commenced. During deliberations, the jury sent the following questions to the court regarding the two elements instructions: The trial court, in a phone call with the State, Defendant, and defense counsel, informed the parties that the jury had submitted two questions. The trial court read the questions to the parties and asked them for input regarding an answer. The State in response stated that it believed telling the jury any one condition could be met would be satisfactory. Defense counsel objected to the State's proposed answer to the jury question and told the trial court that he believed no additional instruction was necessary; that the jury should be told they had adequate instructions and they should reread the jury instructions to find an answer. The trial court then informed the parties that he would instruct the jury as follows: "Both instructions 37 and 40's subparagraphs (the a, b, c,'s) you refer to end with the word `or' and therefore should be read accordingly."
¶ 5 Following the two-day trial, the jury convicted Defendant of a single count of pattern of unlawful activity and four counts of exploiting prostitution. The jury acquitted Defendant of a single count of money laundering. Thereafter, Defendant filed a motion for arrest of judgment or, in the alternative, for a new trial on the grounds that (1) the trial court failed to rule on Defendant's motion for bill of particulars before trial, (2) the trial court erred by not compelling the State to provide a bill of particulars, (3) the jury was given improper instruction as to jury unanimity, (4) the trial court allowed the State to present evidence pertaining to all subsections of the pattern of unlawful activity statute when Defendant was only charged with violating one of those subsections, and (5) the evidence introduced was insufficient to overcome a reasonable doubt that Defendant committed the crimes of which he was convicted.3 The trial court denied Defendant's motion and sentenced him to a term of one-to-fifteen years in the state prison for the pattern of unlawful activity conviction, and a term of zero-to-five years for each of the four exploiting prostitution convictions. The trial court suspended the prison terms but required Defendant to serve sixty days in jail, and placed him on probation. Defendant now appeals.
¶ 6 Defendant argues on appeal that the trial court erred by failing to rule on his bill of particulars motion prior to trial and by failing to compel the State to provide a bill of particulars. Defendant argues that the probable cause statement inadequately notified him of the factual allegations supporting the criminal charges. State v. Norcutt, 2006 UT App 269, ¶ 8, 139 P.3d 1066 (alteration in original) (internal quotation marks omitted).
¶ 7 Defendant next argues that the trial court inadequately instructed the jury on the meaning of jury unanimity and the elements for the pattern of unlawful activity. "A challenge to a jury instruction as incorrectly stating the law presents a question of law, which we review for correctness." State v Weisberg, 2002 UT App 434, ¶ 12, 62 P.3d 457 (internal quotation marks omitted).
¶ 8 Defendant lastly argues that the trial court should have arrested judgment as a result of insufficient evidence.
The standard for determining whether a trial court correctly granted or denied a motion for arrest of judgment is the same standard appellate courts apply in determining whether a jury verdict should be set aside for insufficient evidence. Under that standard a trial court may arrest a jury verdict when the evidence, viewed in the light most favorable to the verdict, is so inconclusive or so inherently improbable as to an element of the crime that reasonable minds must have entertained a reasonable doubt as to that element.
State v. Hoffhine, 2001 UT 4, ¶ 20, 20 P.3d 265 (citation and internal quotation marks omitted).
¶ 9 Defendant argues that the trial court erred by failing to rule on his bill of particulars motion, see Utah R. Crim. P. 12(e), and argues that the trial court should have compelled the State to provide a bill of particulars because the State failed to adequately notify Defendant of the charges against him. In particular, Defendant asserts that the probable cause statement was inadequate because the State cited generally to the exploitation of prostitution statute without identifying which of the five separate crimes Defendant was being charged with committing. See Utah Code Ann. § 76-10-1305 (1)(a)-(e) (2008). The State argues that the invited error doctrine forecloses appellate review of this issue because defense counsel affirmatively represented to the trial court that he was ready to proceed to trial even though he had not received a bill of particulars.
The invited error doctrine prohibits parties from taking advantage of an error committed at trial when that party led the trial court into committing the error. Affirmative representations that a party has no objection to the proceedings fall within the scope of the invited error doctrine because such representations reassure the trial court and encourage it to proceed without further consideration of the issues.
Newman v. Whitewater Whirlpool, 2008 UT 79, ¶ 14, 197 P.3d 654 (citation and internal quotation marks omitted).
¶ 10 In this case, the trial court asked defense counsel on the day of trial if he was ready to proceed and defense counsel gave an affirmative response. Defense counsel's affirmative representation that he was ready to proceed encouraged the trial court to proceed with the trial without ruling on Defendant's pending motion for a bill of particulars. As a result, we conclude that Defendant led the trial court into committing error, if any. We therefore apply the invited error doctrine and hold that Defendant is precluded from asserting trial court error in this regard.
¶ 11 Defendant contends that the trial court inadequately and incorrectly instructed the jury on the meaning of jury unanimity and that the elements of the pattern of unlawful activity instruction created a fatal variance from the information used to charge Defendant. Defendant also argues that the trial court erred by failing to require the State to elect offenses. Defendant acknowledges that he did not object to the instructions and thereby failed to preserve these issues at trial. Therefore, Defendant raises his jury instruction issues as plain error and argues manifest injustice on appeal. The State responds that the invited error doctrine forecloses even a plain error appellate review of these jury instruction issues because defense counsel affirmatively represented to the trial court that, other than an unrelated issue, he had no objections to the jury...
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