State Ex Rel. D.B.
State Ex Rel. D.B.
Concurring Opinion
(concurring in the result):
T13 I am willing to assume that, before the juvenile court entered its ruling, D.B. did not have fair notice that the State was relying on a theory of accomplice liability. But once the juvenile court ruled, D.B. certainly knew that accomplice liability was the basis for the court's decision. Although D.B. could easily have raised the issue in a post-judgment motion, he did absolutely nothing to bring his objection to the attention of the juvenile court. Instead, D.B. attempts to raise this issue for the first time on appeal. Because this issue was not preserved below, we should not address it.
T14 Issues "not raised before the trial court may not be raised [for the first time] on appeal." State v. Holgate, 2000 UT 74, 4 11, 10 P.3d 346.
[I]n order to preserve an issue for appeal[,] the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue. This requirement puts the trial judge on notice of the asserted error and allows for correction at that time in the course of the proceeding. For a trial court to be afforded an opportunity to correct the error (1) the issue must be raised in a timely fashion[,] (2) the issue must be specifically raised[,] and (8) the challenging party must introduce supporting evidence or relevant legal authority.
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (alterations in original) (citations and internal quotation marks omitted). This court will not address an unpre-served issue absent either plain error or exceptional cireumstances, see Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346, neither of which exceptions D.B. properly raises on appeal. See supra ¶ 7 n. 6.
115 The dissent claims that D.B. should not be penalized for his failure to raise the issue below because a postjudgment motion is neither necessary nor sufficient to preserve this issue for appeal. It was entirely possible and appropriate for D.B. to raise the
[ 16 The cases cited by the dissent do not stand for the proposition that a postjudgment motion is unnecessary or insufficient to preserve issues for appeal. In Sittner v. Schriever, 2000 UT 45, 2 P.3d 442, the supreme court noted that the preservation rule does not "require a party to file a post-judgment motion before the trial court as a prerequisite to filing an appeal." Id. 116. The court concluded, however, that the party there had already preserved the issues he appealed: two issues were briefed in motions and other pleadings, and the other issue was one of appellate procedure over which the trial court "lacked authority and jurisdiction." Id. 117. Thus, Sittner merely stands for the proposition that, while a party must raise an issue before the trial court to preserve it, a party is not required to raise it a second time in a postjudgment motion. In the other case cited by the dissent, State v. Erickson, 722 P.2d 456 (Utah 1986) (per cu-riam), the supreme court held that a defendant failed to preserve for appeal an evidence suppression issue. See id. at 759. The defendant there failed to timely raise the issue in a motion to suppress or at trial and instead attempted to raise the evidentiary issue improperly in a postjudgment motion. See 1d.
[ 17 In my opinion, if D.B. lacked notice of the accomplice liability theory at trial, it was necessary for him to raise the issue in a postjudgment motion. And absent a post-judgment motion requesting that the trial court determine whether D.B. had adequate notice of the accomplice liability theory, this issue was not preserved for appeal.
{18 I therefore concur in affirming the judgment.
. The State also identifies three other rules that could have formed a basis for requesting post-judgment relief; rule 44(c), rule 46(a), and rule 47(b)(1)-(2) of the Utah Rules of Juvenile Procedure.
. I recognize that under rule 52(b) of the Utah Rules of Civil Procedure, a party may appeal the sufficiency of the evidence from a bench trial without first raising the issue before the trial court. See Utah R. Civ. P. 52(b) ("When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the district court an objection to such findings."). That is not the claim asserted here.
Opinion of the Court
OPINION
{1 D.B. appeals from the juvenile court's adjudication finding him guilty as an accomplice, see Utah Code Ann. § 76-2-202 (2008), on allegations of theft, see id. § 76-6-404, and criminal trespass, see id. § 76-6-206(2). We affirm.
BACKGROUND
(2 An eyewitness contacted police dispatch to report that two juvenile boys were attempting to break the padlocked gate to a construction site. Police responded and arrested D.B. and another juvenile.
13 The State filed a petition alleging twelve instances of criminal conduct including allegation four that D.B. had committed theft, see id. § 76-6-404, and allegation five that D.B. had committed criminal trespass, see id. § 76-6-206(2). D.B. admitted to allegation one and the State dismissed allegations two and three. The juvenile court held a trial and heard evidence concerning allegations four and five, reserving the remaining counts for trial at a later date. At trial the eyewitness testified that the two boys were "hitting the fence padlock with either a rock or some type of bar" and "[bloth tried to ... climb the fence and they both jumped off and
ISSUE AND STANDARD OF REVIEW
14 D.B. argues that his guilt as an accomplice was neither alleged nor argued at trial and therefore the juvenile court's decision finding him guilty on the theory of accomplice liability was in violation of his due process rights. This issue presents a question of law that we review for correctness. See Chen v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177 ("Constitutional issues, including questions regarding due process, are questions of law that we review for correctness."). When our review of such questions involves underlying factual issues, "we incorporate a clearly erroneous standard for the necessary subsidiary factual determinations." Id.
$5 D.B. asserts that the juvenile court's finding of accomplice liability was in violation of his due process rights because the State neither gave D.B. specific notice that it was pursuing an accomplice Hability theory nor did the State actually request that the juvenile court utilize such a theory. The State initially responds that D.B. failed to preserve his due process challenge in the juvenile court. We first consider the threshold issue of whether D.B. preserved the issue for appellate review.
{6 To preserve an issue for appeal, the issue must have been presented to the trial court in such a way that the court has an opportunity to rule on that issue. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. "This preservation rule has been extended to apply to every claim unless a [party] can demonstrate that exceptional circumstances exist or plain error occurred." Lunt v. Lance, 2008 UT App 192, ¶ 23, 186 P.3d 978 (alteration in original) (internal quotation marks omitted). Issues that are not raised at trial are generally deemed to be waived. See 438 Main St., 2004 UT 72, ¶ 51, 99 P.3d 801. The presence of a constitutional issue does not excuse an appellant from complying with the preservation rules set by the supreme court and the Utah Rules of Appellate Procedure. See O'Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704.
T7 Rather than arguing that D.B. properly preserved the issue for appeal or advancing grounds upon which we may review an unpreserved issue,
T8 I disagree that D.B. was not given notice that such a theory was being pursued. Without determining the type of notice the prosecution must give at trial, I note that accomplice liability is not a separate offense from principal liability, see State v. Gonzales, 2002 UT App 256, ¶ 12, 56 P.3d 969, and "[i]t is well settled that accomplices incur the same liability as principals," id. Moreover, "a person charged with a crime has adequate notice of the possibility of accomplice Hability being raised at trial because conviction of accomplice and principal liability do not require proof of different elements or proof of different quality."
19 After the presentation of testimony, which included testimony that would support both principal and accomplice liability theories, D.B. had several opportunities to challenge the application of accomplice liability. The first opportunity arose when the State, during its closing argument in rebuttal, argued accomplice liability stating,
I didn't mean to misinform, if I stated that both climbed the fence.... But the problem [the defense] has with this whole case is: No matter where [D.B.] was, it was clear, [the eyewitness] says he was a lookout. ... [The eyewitness] thought he was a lookout, he was watching things, and so he's just as responsible for what his Co-defendant does as if he committed that crime.
This comment was a clear statement that the State was not foregoing an accomplice liability theory. Moreover, the State, after hearing D.B.'s closing argument, which largely focused on principal liability,
$10 The next opportunity D.B. had to raise his due process claim occurred when the juvenile court announced in open court, approximately three weeks after trial, D.B.'s guilt on the theory of accomplice liability.
111 D.B.'s failure to object either at trial, at the time of adjudication, or through a postjudgment motion deprived the juvenile court of its opportunity to address the claimed error and, if merited, correct it. See Lunt v. Lance, 2008 UT App 192, ¶ 24, 186 P.3d 978. Accordingly, we conclude that D.B. failed to preserve his due process claim and we affirm the juvenile court's determination.
CONCLUSION
{12 D.B. was on notice that when charged with a criminal violation he could be convicted as either a principal or as an accomplice at trial. The State did not affirmatively exclude application of accomplice liability. D.B. had several opportunities to assert that application of such a theory was done in violation of his due process. D.B. failed to object to this theory during the State's presentation of the evidence that would support D.B.'s guilt under an accomplice liability theory. Likewise, D.B. failed to raise the issue either at the adjudication hearing wherein the juvenile court explicitly applied the theory of accomplice liability or thereafter through a postjudgment motion. D.B.'s failure to raise the issue deprived the juvenile court of its opportunity to address the claimed error and, if merited, correct it. Thus, we conclude that D.B. failed to preserve his due process claim and we affirm the juvenile court's determination.
. The eyewitness, during his testimony, identified D.B. as being one of the involved individuals who had successfully climbed over the fence and went around to the back of the trailer. He testified during direct examination by the State as follows:
Q. Okay. Is there any doubt in your mind of whether or not that's one of the boys?
A. No, sir.
Q. Did you have the opportunity to see them closer on this occasion-on the event that it happened?
A. On the event as it happened, I appeared-the facial features from a distance.
Q. Did the officers come and have you write a statement or anything of that nature?
A. No, sir.
Q. Did they have you identify the boys on that occasion?
A. No, sir.
Q. Okay. This individual is-you've identified in the courtroom, what was his participation?
A. I think he was the one that was jumping into the trailer over the fence.
During cross-examination, they eyewitness again identified D.B. as the individual who had climbed over the fence. He testified as follows: "Q. ... And the boy that was-that jumped over the fence, you identified this individual right here sitting next to me at the table? A. Yes, sir. Q. As the one that jumped over the fence and was inside? A. Yes, sir."
. On cross-examination, the eyewitness specifically testified as follows:
Q. Okay. What happened after you heard the clanking noise?
A. The police-I was still on the phone with them to kind of hurry because I didn't know whether they were going to leave or what. And then immediately the police came down and I [saw] them pull them over and get the boy out of the fence....
[[Image here]]
Q. Okay. And the time that he jumped over the fence, and got inside the fence there, did you watch him the whole time?
A. Yes, while I was on the phone with the police.
Q. Okay. Until the police got there, you watched him the whole time?
A. Yes.
. Ordinarily, I would not address the facts of the case, but in light of the dissent I point out that the juvenile court expressly found that the code-fendant's testimony, upon which the dissent rc-lies as clearly supporting liability as a principal, see infra "I 21, was not credible.
. After reviewing his report, one of the responding officers, Marco Mihailovich, testified that D.B.'s codefendant was inside the fenced-off area and D.B. was on the outside of the fence. Patrol Sergeant Steven Gowans, who arrived with officer Mibailovich and took D.B. into his custody, testified that D.B. was outside of the fence area:
Q. And what did you do-when you approached them, what did they do?
A. One was still inside the fence. I took the other boy into custody, put handcuffs on him, and secured him in my car, then went back to-Officer Mihailovich was still standing by the fence with the other boy still trying to get back over.
Q. What was the name of the boy that you took into your custody, do you recall?
A. [D.B.]
. Although D.B. asserts in his opening brief that the juvenile court erred by finding accomplice liability without any motion or request by the State, he raised the plain error argument only in his reply brief. We decline to review the issue of plain error when raised for the first time in an appellant's reply brief. See Berkshires, LLC v. Sykes, 2005 UT App 536, ¶ 20, 127 P.3d 1243.
. I disagree with the dissent that Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991), a death penalty case, is an instructive case for the issue on appeal. First, death penalty cases present a special situation which the Lank-ford Court recognized requires extra care and notice. See id. at 126 n. 22, 111 S.Ct. 1723 ("In the capital context, in which the threatened loss is so severe, the need for notice is even more pronounced."). Second, the Court's determination that the defendant did not receive adequate notice was largely based on the circumstances of the case. See id. at 111, 111 S.Ct. 1723 ("The unique circumstances that gives rise to concern about the adequacy of the notice in this case is the fact that, pursuant to court order, the prosecutor had formally advised the trial judge and petitioner that the [s]iate would not recommend the death penalty."). In Lankford, the Court determined that it was unrealistic to assume that the notice provided by the statute and the arraignment survived the state's response to a pre-sentencing order where the state specifically said that it would not pursue the death penalty, and the trial court's silence following that response. See id. at 120, 111 S.Ct. 1723 (''The presentenc-ing order entered by the trial court requiring the [state to advise the court and the defendant whether it sought the death penalty, and if so, requiring the parties to specify the aggravating and mitigating circumstances on which they intended to rely, was comparable to a pretrial order limiting the issues to be tried. The purpose of such orders is to eliminate the need to address maiters that are not in dispute, and thereby to save the valuable time of judges and lawyers."). The Court found that the trial court's silence had the practical effect of concealing from the parties the principal issue to be decided at the sentencing hearing, that is, whether to impose the death penalty. See id. ("There is nothing in the record after the [state's response to the presentencing order and before the trial judge's remark at the end of the hearing that mentioned the possibility of a capital sentence. During the hearing, while both defense counsel
. Regarding the criminal trespass charge, D.B. argued that "[the fact is, he never did go into the construction yard, and, consequently, there was no criminal trespass on his behalf." Respecting the theft charge, D.B. argued "[t}he fact of the matter is that there just isn't any evidence that [D.B.] entered into the construction yard and had possession of any bolt cutters or anything else that would indicate he was-that he, in fact, committed a theft."
. The juvenile court in announcing its decision explicitly discussed accomplice liability and specifically referenced Utah Code section 76-2-202 entitled, "Criminal responsibility for direct commission of offense or for conduct of another," see Utah Code Ann. § 76-2-202 (2008).
. Although a party is not required to file a postjudgment motion before the trial court as a prerequisite to filing an appeal, see Sittner v. Schriever, 2000 UT 45, ¶¶ 15-16, 2 P.3d 442, nor does reference to the issue in such a filing necessarily preserve the point for appeal, see LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 484 (Utah Ct.App. 1991), raising the issue after disposition would have afforded the juvenile court an opportunity to address the issue. Cf. State v. Belgard, 830 P.2d 264, 265-66 (Utah 1992) (holding that issues raised and dealt with in posttrial evidentiary hearings may be preserved for appeal).
. I agree with the concurring opinion that D.B. did not preserve his argument that he lacked notice of accomplice liability and that if D.B. did in fact lack notice it was necessary for him to raise the issue in a postjudgment motion. To the extent that this opinion touches on the merits of the case, it is solely in response to D.B.'s argument that preservation is irrelevant and that there was nothing to object to in order to preserve the issue of accomplice liability notice.
Dissenting Opinion
(dissenting):
T19 First, I write separately to correct the lead opinion's misleading characterization of
I. The Presentation of Evidence and Argument at Trial
20 The lead opinion incorrectly represents that the evidence produced by the State clearly supported that D.B. was acting as an accomplice. The evidence does so only when it is rearranged and edited in a way that is not consistent with the way in which is was presented at trial. The lead.opinion sets forth only the evidence that, when combined together
€ 21 The evidence and argument, as it was presented at trial, simply did not signal that the State was pursuing an accomplice liability theory of guilt. Directly following the eyewitness's testimony that D.B. was the boy who crossed the fence, the State called D.B.'s codefendant to the stand. The codefendant testified that botk he and D.B. had jumped over the fence and that they had acted together in stealing the bolt cutters-D.B. being the one who first took possession of the bolt cutters and wanted to take them. The codefendant also testified that only D.B. had jumped back out of the fenced area before the police arrived.
122 Indeed, of all the evidence produced and statements uttered at trial, the only one that can be construed to be arguing accomplice liability-and then only when generous
[The eyewitness] observed both of them to eventually climb and jump into the area. He said they got in and went around, they appeared to be nervous. He was concerned enough that he contacted the local police department.
.. . [The codefendant] testified that they went into the fenced area, him and [D.B.] both. [D.B.] grabbed the bolt cutters, tossed them to him, and told him to throw them over the fence....
The bottom line is, [the codefendant] indicated that they both crossed the fence, that fenced area that's padlocked, which would cover the trespass. And then an item that they located in that area was thrown over the fence, which shows an intent to steal something, which should cover the theft as well.... Therefore [D.B.] should be found guilty of both charges.
Defense counsel then responded, pointing out the State's misstatement of the eyewitness's testimony and arguing that D.B. committed neither trespass nor theft:
The fact is, [D.B.] never did go into the construction yard, and, consequently, there was no criminal trespass on his behalf.
... The fact of the matter is that there just isn't any evidence that [D.B.] entered into the construction yard and had possession of any bolt cutters or anything else that would indicate he was-that he, in fact, committed a theft.
After this, the prosecutor corrected himself, made a new misstatement of the eyewitness's testimony, and then made the State's first allusion whatsoever to accomplice lability:
I didn't mean to misinform, if I stated that both elimbed the fence.... But the problem [the defense] has with this whole case is: No matter where [D.B.] was, it was clear, [the eyewitness] says he was a lookout.... He thought he was a lookout, he was watching things, and so he's just as responsible for what his [codefendant] does as if he committed that crime. And he should be found guilty, Your Honor.
Thus, this statement from the rebuttal closing argument was far from clarifying something that the State had argued all along but was, instead, the first mention at trial even mildly suggestive of accomplice lability.
II. The Issue on Appeal and the Corresponding Law
23 Interestingly, although the lead opinion says that it does not "determin[el the type of notice the prosecution must give at trial," supra 18, it essentially goes on to conclude that no notice is necessary so long as the defendant is "charged with a criminal violation"; "[the State [does] not affirmatively exclude application of accomplice liability"; and there exists "evidence that would support ... guilt under an accomplice liability theory," regardless of whether such evidence was actually used in that manner, su-pro 112 (emphasis added). And although the lead opinion reframes the issue as one of preservation, the two are essentially the same issue-whether D.B. was given adequate notice (either notice to object or to prepare a defense). I think that in such a situation, where we essentially reach the issue on appeal in our determination of the "threshold issue" of preservation, reliance on the preservation rule to affirm the lower court is less than helpful.
124 As to the analysis of the notice requirement, the lead opinion misconstrues the relevant case law. The parties agree regarding the liability of accomplices and that, as the lead opinion quotes, "a person charged with a crime has adequate notice of the possibility of accomplice liability being raised at trial because conviction of accomplice and principal liability do not require proof of different elements or proof of different quality," State v. Gonzales, 2002 UT App 256,
125 Further, as I referenced above, see supro 120, the lead opinion mistakenly places emphasis on the sufficiency of the evidence to support the trial court's determination. The lead opinion argues that so long as the evidence is sufficient to support an accomplice liability theory, the defendant must defend against it, regardless of whether such a theory was argued by the prosecution at trial. See supra 18. But I do not agree that the mere existence of facts that could have been used to support a certain theory is relevant if the theory is never actually raised at trial. And the only authority the lead opinion cites for such a proposition is a case in which there was sufficient evidence to support a jury instruction on accomplice liability, which instruction would have clearly put the defendant on notice at trial that such a theory was being considered, see State v. White, 577 P.2d 552, 554 (Utah 1978). Certainly had the accomplice liability theory been advanced at trial, I wholeheartedly agree that there would have been sufficient evidence to support the theory. But this is precisely the point-the theory was not advanced at trial and therefore the defense could not be expected to challenge such a theory. Cf. Lankford v. Idaho, 500 U.S. 110, 120, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991) (recognizing that although there were no limits placed on the defense counsel's preparation, "it was surely reasonable for the defense to assume that there was no reason to present argument or evidence directed at whether the death penalty was either appropriate or permissible" where the prosecution never argued for the application of the death penalty).
T26 Instead, an instructive case for the issue on appeal is Lankford v. Idaho, 500 U.S. 110, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991). In Lankford, after the defendant had been found guilty, the State did not argue in the sentencing phase for the imposition of the death penalty but instead asked for an indeterminate life sentence. See id. at 116, 111 S.Ct. 1723. In response, although the evidence could have supported a death penalty sentence, the defense understandably made no argument against the imposition of the death penalty but instead focused its argument on urging a shorter sentence than the sentence recommended by the State. See id. At the conclusion of the hearing, the trial court made a statement that included a brief and somewhat unclear mention of the death penalty. See id. at 116-17, 111 S.Ct. 1723.
At the beginning of this lengthy statement, [the trial court] described the options available to the court, including the indeterminate life sentence recommended by the State, "or a fixed life sentence for a period of time greater than the number of years he would serve on a indeterminate life sentence, le., ten. For example, a fixed term of 40 years or death or a fixed life sentence."
Id. Apparently, no objection was made by the defense to the passing reference to the death penalty. A few days later, the trial court sentenced the defendant to death. See id. at 117, 111 S.Ct. 1723. The defendant petitioned for postconviction relief, which the trial court denied; and the denial was subsequently affirmed by the Idaho Supreme Court. See id. at 118, 111 S.Ct. 1723. The United States Supreme Court, however, re
27 The case before us is similar to Lank-ford. Although the trial here ended with one brief comment by the prosecutor that could have been interpreted as suggesting a theory of accomplice liability, such a theory was not argued or advanced prior to the parting comment. Instead, the State had clearly pursued another theory of liability in its argument at trial Thus, the defense did not receive adequate notice of the ultimate issue upon which the case would be decided. I do not think, nor apparently did the Lankford Court, that one vague allusion to an issue at the close of the presentation of evidence and argument qualifies as constitutionally adequate notice.
III. The Failure to Object Below
A. The Rebuttal Closing Argument
128 It may be true that the statement from the prosecutor's rebuttal closing argu
129 Furthermore, even assuming that the statement made in the State's rebuttal closing argument caused D.B.'s counsel to begin questioning whether accomplice liability was now being suggested, he could not reasonably have been expected to object and provide the State with another theory of lability in time for the State to amend its argument and specifically argue the theory. And it certainly is not the responsibility of the defense to assure that the State takes the necessary steps to present its case so as to properly convict the defendant.
180 Moreover-and most importantly-D.B.'s argument on appeal is not that the statement made during the rebuttal closing argument was somehow inappropriate, i.e., some sort of prosecutorial misconduct. Instead, his argument is that the trial court violated D.B.'s due process rights by basing its finding of guilt on an accomplice liability theory that was not pursued or argued in any fashion that would allow D.B. to prepare a defense at trial. Thus, the error that D.B. challenges occurred when the trial court made its decision three weeks after the trial. I therefore think it is totally unreasonable to fault D.B. for not raising the issue at trial-before the error complained of actually even occurred. The statement in the rebuttal closing argument simply does not qualify as one of D.B.'s "several opportunities to challenge the application of accomplice liability," see supra 1 9, when the statement was made weeks before the application of the theory.
B. The Announcement of the Trial Court's Final Decision
{31 When the trial court announced its decision three weeks after trial, it was clear that the trial court was not convineed that D.B. acted as a principal in the theft or trespass:
I find that [the eyewitness's] testimony was credible. [The codefendant] testified that both he and [D.B.] jumped the fence, and both had ... the bolt cutters in their possession. I don't find that was credible, not only based on the fact that [the eyewitness] only saw one individual climb the fence. And when the police arrived, there was one individual inside the fence [ (the codefendant)] and one individual outside the fence [(D.B.) ]. And so, I just didn't find that [the codefendant] was credible, and that both boys jumped the fence.
Instead, the trial court determined that D.B. was guilty as an accomplice. This occasion was what the lead opinion considers the see-ond of D.B.'s "several opportunities" to object.
1382 I do not agree that in order to preserve the issue for appeal D.B. was required to object to an error made in the trial court's final ruling, which was handed down several weeks after trial had concluded. The lead opinion relies on 438 Main St. v. Easy Heat, Inc., 2004 UT 72, 99 P.3d 801, for the proposition that such an objection is mandatory. See supra 1 6. However, that case ultimately cites to Badger v. Brooklyn Canal Co., 966 P.2d 844 (Utah 1998), as authority for the proposition, see 438 Main St., 2004 UT 72, ¶ 51, 99 P.3d 801, and Badger clarifies the rule: "In a trial setting, to preserve an issue for appellate review, a party must first raise the issue in the trial court.... Issues not raised at trial are usually deemed waived," 966 P.2d at 847 (emphases added).
Now, I have also looked at the case of [State v. Gonzales, 2002 UT App 256, 56 P.3d 969,] that indicates that: "Accomplice liability is not a separate offense from principal liability, so it does not require specific notice or indictment or information because it is well-settled that accomplice[s] incur the same liability as principals." [8 ]
Thus, the trial court, which was well aware that the defense had never been put on notice of the accomplice liability issue at trial, sua sponte raised and answered the question of whether it could in such cireumstances still find guilt on an accomplice liability theory.
134 Another purpose of the preservation rule is that it "prevents a party from avoiding the issue at trial for strategic reasons only to raise the issue on appeal if the strategy fails." Tschaggeny, 2007 UT 37, ¶ 20, 163 P.3d 615. Again, the error here did not occur "at trial," and there is no conceivable strategic advantage to D.B. by not raising the issue after the matter had already been concluded. Thus, where the error did not occur at trial and none of the purposes of the preservation rule are applicable here, I do not agree that the preservation rule prevents our review of the issue on appeal. Cf. ABCO Enters. v. Utah State Tax Comm'n, 2009 UT 36, ¶¶ 8-12, 211 P.3d 382 (refusing to apply the preservation rule because none of the situations where the rule was applicable were present in the case).
C. A Postjudgment Motion
135 According to the lead opinion, the third of D.B.'s "several opportunities" to ob
36 Generally, a postjudgment motion itself is neither necessary nor sufficient to preserve an issue for appeal. See Sittner v. Schriever, 2000 UT 45, ¶ 16, 2 P.3d 442 ("Defendants correctly state the general rule that failure to raise an argument before the trial court precludes a party from raising that argument on appeal. However, this rule does not require a party to file a post-judgment motion before the trial court as a prerequisite to filing an appeal." (citation omitted); State v. Erickson, 722 P.2d 756, 759 (Utah 1986) (per curiam) ("Although [the defendant] did raise the issue in post-trial motions, this did not preserve the point for appeal."). Thus, I do not agree with the lead opinion's reliance on the opportunity to file a postjudgment motion as one of D.B.'s "several opportunities" to object to the application of an accomplice liability theory. Nor do I agree that the failure to file a postjudgment motion in any way supports the conclusion that the issue was not preserved for appeal. Simply stated, if a postjudgment motion is not necessary to preserve an issue for appeal, D.B.'s failure to file such a motion is wholly irrelevant to the preservation analysis.
137 Although the concurring opinion may be correct that there are several procedural rules that would allow for postjudgment motions to be filed in this case, there is nothing in those rules supporting the concurring opinion's assertion that such motions are both sufficient and necessary to preserve an issue for appeal.
{38 In sum, I do not think that D.B. was required to raise an objection in order to preserve the error for appeal where (1) the error did not arise at trial, (2) requiring an objection as the decision was announced is not supported by the preservation rule or the purposes behind it, and (8) no postjudgment motion is necessary to preserve the issue for appeal. I would therefore directly address the issue D.B. raises on appeal. And considering the evidence and argument from trial, as properly set forth above, I do not think that D.B. was given adequate notice that the State was pursing a finding of guilt under an accomplice liability theory.
. The State did not draw a connection between these pieces of evidence in its argument before the trial court, let alone argue accomplice liability based on such a connection.
. For example, the lead opinion concedes in a footnote that the eyewitness unequivocally identified D.B. as the boy who crossed the fence, evidence which clearly supports a principal liability theory of guilt. See supra 13 n. 2. Yet the lead opinion does not include this fact when relating the testimony at trial, leaving the testimony simply that one boy entered the construction site and one boy acted as a lookout. See supra, 13. When the testimony is edited in this way, silent as to which role D.B. played, it then may suggest an accomplice liability theory of guilt.
. The lead opinion notes that the trial court found the codefendant's testimony to be not credible. See supra 13 n. 4. I simply do not see the impact of such an observation. First, the prosecution, not D.B., relied on the testimony found to be not credible. Second, the eyewitness's testimony, which the court did find to be credible, also directly supported a principal liability theory because the eyewitness said D.B. was the boy who crossed the fence and not the boy who acted as a lookout. Third, and most importantly, the trial court's ultimate determination days later as to credibility speaks nothing to the issue here-whether D.B. was put on notice by the evidence and argument at trial that the State was pursuing an accomplice liability theory of guilt.
. Clearly the minimum notice requirements for the information are not the same as those for trial. See generally State v. Gonzales, 2002 UT App 256, ¶¶ 9-10, 56 P.3d 969 ("We find it unreasonable to require the State to give notice, at a stage as early as the filing of an information, of all possible theories that might arise, including those that do not become part of the State's case.... Our supreme court has stated that an information is legally sufficient even if it consists of nothing more than an extremely summary statement of the charge'" (emphasis added)). Indeed, it defies logic to imply that the State need not disclose its exact theory at trial. Such would mean that the State never has to disclose a theory of its case and the defense always has to prepare and defend against every possible theory, even those that are unannounced. This surely violates any notion of procedural fairness or constitutional due process rights.
. Although admittedly there are differences between the case at hand and the situation in Lankford, I do not see that such differences make the law and reasoning set forth in Lankford inapplicable to the instant case. First, there is no indication whatsoever in Lankford that notice is required only in capital cases. Rather, the Court explained,
In a variety of contexts, our cases have repeatedly emphasized the importance of giving the parties sufficient notice to enable them to identify the issues on which a decision may turn. In the capital context, in which the threatened loss is so severe, the need for notice is even more pronounced.
Lankford v. Idaho, 500 U.S. 110, 126 n. 22, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991) (emphases added) (citations omitted). Second, I fail to see the practical difference between the prosecution stating that it will not pursue a theory and the prosecution simply opting to forgo that theory without comment. Either way, the defendant has no notice that the issue is being considered. And regardless, "while both defense counsel and the prosecutor were arguing the merits of [principal liability], the silent judge was the only person in the courtroom who knew that the real issue that they should have been debating was [whether D.B. was guilty as an accomplice]." See id. at 120, 111 S.Ct. 1723. A defendant simply should not be convicted on a theory that is left unargued by the prosecution, regardless of whether forgoing such theory was a conscious, articulated decision on the part of the State.
. And I can think of no situation, either at the trial level or on appeal, where a party is allowed to raise a brand new issue or theory in rebuttal. See generally U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 63, 990 P.2d 945 ("To allow a party to raise new issues in its rebuttal materials is improper because it precludes the other party the opportunity to respond.").
. Hence, any error by the trial court in applying an accomplice liability theory was clearly prejudicial to D.B.
. Contrary to how it appears in the transcript, this language is not a direct quote from State v. Gonzales, 2002 UT App 256, 56 P.3d 969. Indeed, this interpretation by the trial court goes far beyond what the Gonzales court ruled. Gonzales simply provides that the State need not specifically state its intention to pursue an accomplice liability theory in the information, see id. 19, and that "a person charged with a crime has adequate notice of the possibility of accomplice liability being raised at trial because conviction of accomplice and principal liability do not require proof of different elements or proof of different quality," id. 112 (emphases added). But there is nothing in Gonzales that supports the trial court's interpretation that a defendant is not entitled to any notice before or during trial that an accomplice liability theory is being advanced. Rather, as discussed above, a defendant is entitled to some notice at trial and cannot be convicted under an accomplice liability theory that was never argued or advanced by the evidence-a point that the State apparently concedes. Accordingly, I believe that basing guilt on accomplice liability without D.B. receiving notice of that theory being pursued at trial was clear error by the trial court.
. I also note that any objection at this point would not likely have made the trial court reconsider fis decision because, in light of the arguments advanced at trial and the lack of notice regarding an accomplice liability theory, D.B.'s counsel was probably not prepared with any additional authority or an alternate reading of Gonzales to argue against the trial court's decision.
. Additionally, these cases involve instances where the motion gave "the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial" because it allowed the court to "reopen[] the trial when it held an evidentiary hearing to address [the] defendant's claim made in his motion to arrest judgment." State v. Belgard, 830 P.2d 264, 266 (Utah 1992). In our case, any postjudgment motion would not have served any judicial economy purpose.
. Further, most of those rules would allow for a new hearing or trial, which would only give the State a second opportunity to give appropriate notice and convict D.B. correctly. I see no authority supporting the notion that the State is entitled to a second bite at the apple when the lack of notice is entirely of its own creation.
. Indeed, I am not convinced that the State itself was aware that accomplice liability was at issue.
Reference
- Full Case Name
- STATE of Utah, in the interest of D.B., a person under eighteen years of age. D.B. v. State of Utah
- Cited By
- 2 cases
- Status
- Published