State v. Norcutt

• Decision Date: 29 June 2006
• Docket Number: No. 20040383-CA.,20040383-CA.
• Citation: State v. Norcutt, 139 P.3d 1066, 2006 UT App 269 (Utah App. 2006)
• Parties: STATE of Utah, Plaintiff and Appellee, v. Raymond Lee NORCUTT, Defendant and Appellant.
• Court: Utah Court of Appeals

139 P.3d 1066

2006 UT App 269

STATE of Utah, Plaintiff and Appellee, v.Raymond Lee NORCUTT, Defendant and Appellant.

No. 20040383-CA.

Court of Appeals of Utah.

June 29, 2006.

COPYRIGHT MATERIAL OMITTED

Michael D. Esplin and Patrick V. Lindsay, Esplin & Weight, Provo, for Appellant.

Mark L. Shurtleff, atty. gen., and Jeanne B. Inouye, asst. atty. gen., Salt Lake City, for Appellee.

Before Judges McHUGH, ORME, and THORNE, Jr.

OPINION

THORNE, Jr., Judge:

¶ 1DefendantRaymond Lee Norcutt appeals his conviction for violating sections 58-37d-4and58-37d-5 of Utah's Clandestine Drug Lab Act.SeeUtah Code Ann. §§ 58-37d-4, -5 (Supp.2005).We affirm.

BACKGROUND

¶ 2 On September 26, 2001, officers from the Uintah County Sheriff's Office executed a search warrant at the residence of Lindsay Hale and Norcutt.Pursuant to the warrant, officers searched the residence and a bus owned by Norcutt that was located on the property.Officers discovered glassware, chemicals, and other items necessary to manufacture methamphetamine in or near the bus.As a result of this search, Norcutt was charged with possession of clandestine laboratory precursors and/or equipment, a first degree felony.Seeid.The Information alleged that Norcutt's crime occurred on or about September 26, 2001, the date of the search.On June 26, 2002, Norcutt appeared with his attorney and waived his right to a preliminary hearing.

¶ 3 On May 20, 2003, Norcutt filed a Demand for Date, Time and Place of the Offense (Demand).Seeid.§ 77-14-1(2002).On May 29, 2003, the State responded to Norcutt's Demand stating that "[t]he alleged date of occurrence was on or between January 1, 2001[,] and September 26, 2001."

¶ 4 On June 3, 2003, Norcutt filed a Notice of Alibi Defense, stating that he left the State of Utah on August 13, 2001, to travel to Wyoming where he remained until February 4, 2002.¹Norcutt simultaneously filed a Motion in Limine to exclude any evidence of alleged criminal conduct that may have occurred prior to September 26, 2001.Norcutt contended that he was not able to investigate and prepare a defense for the expanded dates by the trial date of June 16, 2003.

¶ 5 On June 5, 2003, Norcutt filed a Motion to Continue Trial and for Preliminary Hearing and a Motion to Dismiss.He requested that the trial court set a preliminary hearing, arguing that his previous waiver was ineffective and void because the State had materially changed its position regarding the date of the alleged violation.In the Motion to Dismiss, Norcutt asserted that the State amended the Information by expanding the time of the alleged crime and that such an amendment was impermissible because it was done so close to the trial date.On June 16, 2003 the date set for trial, the court addressed several evidentiary issues, excused the jurors, and reset the trial for December 1, 2003.

¶ 6 On November 24, 2003, the State filed a fourth amended witness list, which included Terry Vincent, a Wyoming Highway Patrol Officer.The next day, Norcutt filed a Motion in Limine to exclude Vincent's proposed testimony that Norcutt had previously possessed a methamphetamine cookbook.On the morning of trial, the trial court heard arguments on the Motion in Limine.The trial court denied the motion, finding that the prejudicial effect of the cookbook was outweighed by its probative value.Norcutt was convicted at trial of violating the Clandestine Drug Lab Act.He now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Norcutt contends that he was denied his statutory and constitutional right to a preliminary hearing.SeeUtah Const. art. I, § 12;Utah R.Crim. P. 7(h)(1).Constitutional issues are questions of law that we review for correctness.SeeChen v. Stewart,2004 UT 82, ¶ 25, 100 P.3d 1177.

¶ 8 Norcutt also argues that he did not have adequate notice of the date of the allegations to prepare his alibi defense for trial."[W]e accord a trial court's conclusions of law no particular deference, reviewing them for correctness.Here, the question of the adequacy of the notice given defendant is one of law."State v. Wilcox,808 P.2d 1028, 1031(Utah1991)(citations omitted).

¶ 9 Finally, Norcutt argues that the trial court erred by admitting evidence that he had previously been in possession of a notebook containing methamphetamine recipes."We review a trial court's decision to admit evidence of prior crimes or other bad acts under an abuse of discretion standard."State v. Bisner,2001 UT 99, ¶ 54, 37 P.3d 1073.

ANALYSIS

I.Amendment of Information and Right to Preliminary Hearing

¶ 10 Norcutt contends that the State amended the Information against him when it expanded the time frame for commission of the offense from "on or about September 26, 2001" to "between January 1, 2001[,] and September 26, 2001."Norcutt asserts that this amendment was impermissible since it was done so close to the trial date.An indictment or information may be amended any time before a verdict if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced.SeeUtah R.Crim. P. 4(d).Assuming that the enlargement of dates effectively amounted to an amendment of the Information, the amendment is permitted unless it prejudiced Norcutt's rights or created additional or different offenses.

¶ 11 Norcutt was not prejudiced by the amendment because he had approximately six months after receiving notice of the change to prepare a defense.SeeTillman v. Cook,855 P.2d 211, 215-16(Utah1993)(holding that defendant was not prejudiced by the amended information because defendant's attorneys had more than three months after the amendment to prepare a defense and the amendment did not expose defendant to greater punishment).Moreover, any amendment to Norcutt's Information did not change or add to his charge or increase the possible penalty.Seeid. at 215(stating that whether an amendment charges an additional or different offense depends on whether different elements are required to prove the offense or whether the charge increased the potential punishment from that originally charged);see alsoState v. Holt,2004 UT App 213, 2004 WL 1426959 *1, 2004UT AppLEXIS 173, at *2(mem.)("Because only the dates and location of the offenses were changed in the amended information, no additional or different offenses were charged.").

¶ 12 Norcutt also contends that the trial court deprived him of his right to a preliminary hearing, arguing that his initial waiver was ineffective because the Information against him was amended after his waiver.The "preliminary hearing is the procedure by which the State puts on sufficient evidence to convince a committing magistrate that the crime charged has been committed and that there is sufficient cause to believe the defendant committed it."Seibold v. Turner,20 Utah 2d 165, 435 P.2d 289, 290-91(1967).The primary purpose of this process is to ferret out groundless prosecutions, relieving "`the accused from the substantial degradation and expense incident to a modern criminal trial when the charges against him are unwarranted or the evidence insufficient.'"Kearns-Tribune Corp. v. Lewis,685 P.2d 515, 520(Utah1984)(quotingState v. Anderson,612 P.2d 778, 784(Utah1980)).

¶ 13 In this case, the evidence presented at trial was sufficient for the jury to find Norcutt guilty of committing the crime of clandestine laboratory precursors and/or equipment beyond a reasonable doubt, notwithstanding the expanded time frame charged and his incarceration in Wyoming.²Moreover, Norcutt has not argued that his charge was groundless or unwarranted or that there was insufficient evidence to either convict him of the offense or convince a magistrate that there was probable cause to believe that he committed the offense.Cf.McGuffey v. Turner,18 Utah 2d 354, 423 P.2d 166, 167(1967)("It is rather difficult to see how a guilty defendant is prejudiced by waiving a preliminary hearing when all that is entailed at the hearing is that sufficient evidence be given to the committing magistrate to cause him to believe that a crime has been committed and that there is probable cause to believe the defendant guilty thereof.").Furthermore, Norcutt has failed to identify how the lack of a preliminary hearing after the State's response to his Demand harmed him, and he does not "cite any avenue of cross-examination or testimony at trial which might have been favorably affected by a [preliminary hearing]."Taylor v. Warden,905 P.2d 277, 283(Utah1995).In addition to ferreting out groundless prosecutions, a preliminary hearing provides "the defendant particulars on the nature of the State's case and a means to discover and preserve evidence favorable to his defense."Kearns-Tribune Corp.,685 P.2d at 520.Although Norcutt may have received more particulars on the nature of his case if he was provided with a second chance to proceed with a preliminary hearing, there is no indication that he did not receive all the information he needed to prepare his defense.³

¶ 14 In sum, Norcutt waived his right to a preliminary hearing and has not demonstrated that he was prejudiced by the trial court's denial of his motion for a preliminary hearing based on the expanded time frame for the offense.Norcutt had approximately six months after receiving notice of the enlarged dates to prepare a defense, and he did not request another continuance.Any amendment to the Information did not increase his charge or possible penalty, and a jury found that there was sufficient evidence to convict him of the offense.Under these circumstances, Norcutt has not identified any error in the trial court's denial of a new hearing.

II.Notice

¶ 15 Norcutt's second contention is that he did not have sufficient notice of the dates the State intended to use so as to prepare his defense.

Article I, section 12 of the Utah Constitution guarantees, [i]n criminal prosecutions...