State v. Black

2015 UT App 30

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellant,

v.

MICHAEL S. BLACK AND ALTA MARIE BLACK,

Defendants and Appellees.

Opinion

No. 20130535-CA

Filed February 12, 2015

Third District Court, West Jordan Department

The Honorable Mark S. Kouris

Nos. 111400921 & 111400922

Sean D. Reyes and Jeanne B. Inouye, Attorneys

for Appellant

John Walsh, Attorney for Appellee

Michael S. Black

Grant W.P. Morrison, Attorney for Appellee

Alta Marie Black

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGES

GREGORY K. ORME and KATE A. TOOMEY concurred.

PEARCE, Judge:

¶1 Seven months after a jury returned guilty verdicts against

Michael S. Black and Alta Marie Black, the district court arrested

judgment, dismissed the charges, and acquitted the defendants

based upon newly available testimony that had not been

State v. Black

presented at trial.1 We conclude that the district court lacked the

authority to acquit the defendants and that its order was in effect

an arrest of judgment. We conclude that the district court erred

in arresting judgment, because a district court may only consider

the facts proved or admitted at trial to determine whether they

constitute a public offense. We further conclude that the district

court erred by dismissing the charges, because it based that

decision on its own reassessment of witness credibility in light of

new testimony. The State concedes that the defendants should be

granted a new trial based upon the now-available evidence. We

reverse the district court’s arrest of judgment, dismissal of

charges, and order of acquittal. We remand the case to the

district court to consider the motion for new trial in light of the

State’s concession.

BACKGROUND

¶2 We recite the facts in the light most favorable to the jury’s

verdict, and we present conflicting evidence as necessary to

understand issues raised on appeal. State v. Heaps, 2000 UT 5,

¶ 2, 999 P.2d 565; State v. Melancon, 2014 UT App 260, ¶ 3, 339

P.3d 151.

¶3 The State accused Michael S. Black and Alta Marie Black

(Defendants) of committing a number of financial misdeeds

arising out of a series of real estate transactions. The State

brought fourteen charges against Defendants, alleging that they

1. We recognize the conceptual difficulty inherent in the district

court dismissing the charges and acquitting the defendants of

those same charges. On appeal, the parties treat both orders as

effectual and analyze them separately. We follow their approach.

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State v. Black

had misused funds entrusted to them by a would-be homebuyer

(Homebuyer).

¶4 In 2005, Homebuyer had paid a $60,000 deposit toward

the purchase of a house and began making monthly payments.

Later, Homebuyer asked Defendants to help her complete the

house purchase and entrusted $180,400 to them for that purpose.

On September 22, 2008, Alta Marie Black and a title agent (Title

Agent) came to Homebuyer’s residence. Homebuyer signed

documents that relinquished her interests in the $60,000 and in

the house to Defendants.2 Defendants then resold the house,

claiming that it would help Homebuyer buy a different house.

Homebuyer received no more than $6,000 from the transaction.

¶5 At trial, Homebuyer testified about the September 22,

2008 meeting. She stated that she had been ill and vomiting.

According to Homebuyer, Alta Marie Black and Title Agent

arrived with documents and would not leave until Homebuyer

signed all of them. Homebuyer testified that she had not seen the

documents before and did not know what she was signing.

Homebuyer claimed that Alta Marie Black told her that she was

going to get her money back. Homebuyer also testified that

because she could not see well that day, Alta Marie Black and

Title Agent put Homebuyer’s fingers on the signature lines to

help her sign the documents.3

2. These documents included a reconveyance of Homebuyer’s

interest in the house to Alta Marie Black and a beneficiary’s

demand for payoff. The demand was for “$0,” was signed by

Homebuyer, and was notarized by Title Agent.

3. Alta Marie Black also testified about the meeting. She claimed

that Homebuyer had not said anything about being sick and that

Homebuyer had been “ambulatory.”

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State v. Black

¶6 At the close of the State’s case, Defendants moved for a

directed verdict. The court denied the motion. After the defense

presented its case, the jury returned guilty verdicts against

Defendants.4 A week after trial, Defendants filed a motion for

judgment notwithstanding the verdict regarding one of the

counts and a motion for new trial. Those motions focused on an

exhibit that the State had introduced at trial.

¶7 Several months later, but before sentencing, Defendants

filed a supplemental memorandum to the motion for new trial.

Defendants also filed a motion to arrest judgment. Defendants

argued that the State had withheld or concealed exculpatory

evidence—Title Agent’s testimony—by convincing Title Agent

that she could be prosecuted for talking to Defendants or their

attorneys.

¶8 During the investigation of the case, the State had

subpoenaed Title Agent. At that time, the State’s investigator

told Title Agent that she could not disclose the existence of the

subpoena to anyone outside the title company. Based on this

conversation, Title Agent believed that she was forbidden from

discussing the case with Defendants or their attorneys.5 When

the State subpoenaed her to testify at trial, Title Agent reported

that she had suffered a brain injury and would be unable to

testify because of the medication she had been prescribed. The

4. Specifically, the jury found Michael S. Black guilty on three

counts of theft, four counts of money laundering, and one count

of engaging in a pattern of illegal activity. The jury found Alta

Marie Black guilty on one count of theft.

5. There is a dispute as to whether the State’s investigator

mischaracterized or Title Agent’s attorney misconstrued the

scope and duration of the instruction not to discuss the

investigation.

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trial was later postponed, but neither side subpoenaed Title

Agent to testify at the rescheduled trial. After the trial,

Defendants’ attorneys subpoenaed Title Agent. Title Agent

contacted the prosecutor to ask whether she could respond.

According to Title Agent, the prosecutor told her that “it was a

free world” and that there was never a “gag order.” Defendants’

attorneys then deposed Title Agent.

¶9 Based upon her deposition testimony, the district court

ordered a post-trial evidentiary hearing to permit Title Agent to

testify about the September 22, 2008 meeting with Homebuyer.

There, Title Agent testified that she had discussed the

documents with Homebuyer, that Homebuyer did not ask for

more time to review the documents, and that Title Agent had not

refused to leave until the documents were signed. Title Agent

also testified that she had not heard Alta Marie Black refuse to

leave until the documents were signed.

¶10 The district court determined that Title Agent’s testimony

“seriously undermines the testimony . . . and credibility of a very

critical State’s witness that a lot of this evidence balanced upon.”

The court continued, “I find [Title Agent] undermines the

veracity of [Homebuyer’s] claim that she didn’t enter into this

real estate transaction knowingly, voluntarily, that her mind

wasn’t clear that day, that she hadn’t had everything explained

to her.” Viewing the evidence in the light most favorable to the

State’s case and the jury’s verdict, the district court found that

there was “good cause to believe that a theft here was not

committed” and that the other crimes charged relied upon a

finding of theft. Accordingly, the district court arrested

judgment, dismissed all of the charges against Defendants, and

ordered Defendants acquitted. The State appeals.

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State v. Black

ISSUES AND STANDARDS OF REVIEW

¶11 The State challenges the district court’s decision to acquit

Defendants, arrest judgment, and dismiss the charges. We

review the district court’s decision to acquit a defendant after a

jury has returned a guilty verdict for correctness. See State v.

Myers, 606 P.2d 250, 252 (Utah 1980).

¶12 A district 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. Bolson, 2007 UT App 268, ¶ 10,

167 P.3d 539 (citation and internal quotation marks omitted).

Accordingly, we review the district court’s decision to arrest

judgment for correctness.

¶13 A district court’s determination that the evidence

presented at trial “is not legally sufficient to establish the offense

charged,” see Utah R. Crim. P. 17(p), is a legal determination,

which we review for correctness, see State v. Hamilton, 2003 UT

22, ¶ 17, 70 P.3d 111.

ANALYSIS

I. Acquittal

¶14 The State first argues that the district court erred in

characterizing its action as an acquittal. The district court

ordered “that Alta Black and Michael Black are acquitted of all

charges filed in this matter.” “In Utah, a judge may not acquit a

defendant after a jury returns a guilty verdict.” State v. Larsen,

834 P.2d 586, 589 (Utah Ct. App. 1992). Indeed, this court has

noted that there “is no rule . . . that allows a judge, who is not the

trier of fact, to acquit a defendant following a jury verdict of

guilty.” Id. The Utah Supreme Court has explained that when

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“there has been a trial by jury, the [S]tate, as well as the

defendant, is entitled to the benefit of the findings and the

verdict of the jury.” State v. Myers, 606 P.2d 250, 251 (Utah 1980).

¶15 “[T]he label attached to a ruling by a trial judge is not

determinative of whether the termination of a criminal

prosecution is an acquittal.” State v. Musselman, 667 P.2d 1061,

1064 (Utah 1983). In Larsen, we distinguished between an

acquittal (which requires a finding that the evidence was

insufficient to enable the jury to convict) and an arrest of

judgment (which allows the district court to determine whether

the facts established at trial actually demonstrate prohibited

conduct). Larsen, 834 P.2d at 590; see also Utah R. Crim. P. 23

(“[T]he court upon its own initiative may, or upon motion of a

defendant shall, arrest judgment if the facts proved or admitted

do not constitute a public offense . . . .”). The district court in

Larsen, like the district court here, denied a motion for directed

verdict at the close of the State’s case, finding that the evidence

presented was sufficient to support a guilty verdict. Larsen, 834

P.2d at 590. We conclude, as we did in Larsen, that the post-

verdict order was in substance an arrest of judgment and not an

acquittal.6 See id.

II. Arrest of Judgment

¶16 The State next contends that the district court erred by

arresting judgment. The arrest-of-judgment rule provides that a

district court may “arrest judgment if the facts proved or

6. This distinction is more than a matter of semantics. Utah Code

section 77-18a-1 allows the State to appeal from an arrest of

judgment, see Utah Code Ann. § 77-18a-1(3) (LexisNexis 2012),

but a valid acquittal is not appealable “no matter how

overwhelming the evidence against the defendant may be,” see

State v. Musselman, 667 P.2d 1061, 1064 (Utah 1983).

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admitted do not constitute a public offense, or the defendant is

mentally ill, or there is other good cause for the arrest of

judgment.” Utah R. Crim. P. 23. The State argues that it was

improper for the court to find that the evidence, including

testimony not presented at trial, did not constitute the public

offenses charged.

¶17 Here, the district court arrested judgment because it

found that the totality of the evidence was “so inconclusive and

so inherently improbable as to the element required in this

crime, that reasonable minds must entertain a reasonable doubt

as to that . . . element.” We construe this to be, in essence, a

ruling that the “facts proved or admitted do not constitute a

public offense.” Utah R. Crim. P. 23. In determining that the

complete evidentiary picture was inherently improbable, the

district court relied heavily on Title Agent’s post-trial testimony.

Because this testimony was never presented to the jury, the facts

it contained were never proved or admitted, as rule 23 requires.

See id. Thus, it was error for the district court to arrest judgment

based upon evidence never presented to the jury.

III. Dismissal of Charges

¶18 The State also contends that the district court erred by

dismissing the charges against Defendants. The district court

dismissed the charges because it found that the evidence

supporting those charges was inherently improbable. “At the

conclusion of the evidence by the prosecution, or at the

conclusion of all the evidence, the court may issue an order

dismissing any information or indictment, or any count thereof,

upon the ground that the evidence is not legally sufficient to

establish the offense charged therein or any lesser included

offense.” Utah R. Crim. P. 17(p). Here, however, the evidence

was not legally insufficient. Indeed, the district court denied

Defendants’ motion for a directed verdict at the end of the

State’s case-in-chief. This was an implicit ruling that the State’s

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evidence was sufficient, if the jury believed it, to support a

conviction.

¶19 Title Agent’s post-trial testimony contradicted the

evidence presented at trial. Thus, if it had been presented to the

jury, it would have created an evidentiary conflict. The existence

of a conflict in the evidence does not render the totality of the

evidence insufficient. It is the role of the factfinder to examine

and resolve such conflicts. And “[w]hen the evidence presented

is conflicting or disputed, the jury serves as the exclusive judge

of both the credibility of witnesses and the weight to be given

[to] particular evidence.” State v. Yanez, 2002 UT App 50, ¶ 19, 42

P.3d 1248 (citation and internal quotation marks omitted).

¶20 In certain limited circumstances a reviewing court may

reassess witness credibility. For example, a court may reconsider

a witness’s testimony when the events described therein are

physically impossible or the testimony standing alone appears

false without resort to inferences or deductions. See id.; see also

State v. Robbins, 2009 UT 23, ¶ 16, 210 P.3d 288. When confronted

with an apparent falsity, a district court may “reevaluate the

jury’s credibility determinations only in those instances where

(1) there are material inconsistencies in the [witness’s] testimony

and (2) there is no other circumstantial or direct evidence of the

defendant’s guilt.” Robbins, 2009 UT 23, ¶ 19. “The existence of

any additional evidence supporting the verdict prevents the

judge from reconsidering the witness’s credibility.” Id. Thus, a

court may not intrude upon the domain of a jury simply because

two or more witnesses give conflicting accounts.

¶21 When a jury has been deprived of the ability to assess

conflicting evidence, the correct remedy is not to substitute the

court’s assessment of weight and credibility for the jury’s.

Rather, if the district court determines that the absence of the

newly available evidence “had a substantial adverse effect upon

the rights of a party,” the court should consider granting a new

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trial to afford a jury the opportunity to consider that evidence for

itself. See Utah R. Crim. P. 24.

¶22 We conclude that the district court erred by weighing the

evidence after the jury returned a verdict and determining that a

reasonable jury could never resolve the evidentiary conflict Title

Agent’s testimony created in favor of conviction. The court

therefore erred by dismissing the charges against Defendants.

CONCLUSION

¶23 The district court’s order of acquittal was in effect an

arrest of judgment, which we reverse. The district court

improperly considered evidence not presented at trial to

determine whether the evidence was sufficient to demonstrate a

public offense; the court’s arrest of judgment was therefore error.

Because the power to resolve evidentiary conflicts belonged to

the jury in this matter, the district court erred by dismissing the

charges against Defendants on the ground that one witness’s

testimony rendered the other evidence inherently improbable.

We reverse the district court’s arrest of judgment, dismissal of

charges, and order of acquittal. We remand to the district court

to consider Defendants’ motion for new trial, particularly in light

of the State’s concession that Title Agent’s testimony might have

resulted in a different trial verdict had it been presented to the

jury.

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