State v. Hansen

460 P.3d 560

STATE of Utah, Appellee,

v.Brady James HANSEN, Appellant.

No. 20180531-CA

Court of Appeals of Utah.

Filed January 30, 2020

Andrea J. Garland and Brenda M. Viera, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, Thomas B. Brunker, Salt Lake City, and Nathan Jack, Attorneys for Appellee

Judge Kate Appleby authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

Opinion

APPLEBY, Judge:

¶1 Brady James Hansen appeals his convictions of possession of a controlled substance, possession of drug paraphernalia, and possession of a firearm by a restricted person. Hansen asserts the district court plainly erred in not intervening to exclude evidence of his prior convictions of possession of methamphetamine. Hansen further maintains there is insufficient evidence to support the verdict. We affirm.

BACKGROUND¹

¶2 While on patrol, a police officer (Officer) overheard a dispatch call reporting that, at a house not far from him, someone brandished a firearm and then "left in a red passenger car, possibly a [Ford] [M]ustang." A few minutes later, as Officer was en route to the scene, he observed a woman (Woman) dash across a four-lane street and quickly enter the passenger side of "a red ... Mustang" while the car was moving. Another passenger (Passenger) was already inside the car. Because the car matched the description provided in the dispatch call, Officer signaled the car to stop. When the car stopped, the driver, Hansen, began to exit the vehicle. "[W]ith the description of the car and the involvement of a firearm," Officer "didn’t feel comfortable with the driver getting out," so he instructed Hansen to return to the car while he awaited backup and Hansen complied. As Officer waited, he saw Hansen "bending over in the driver’s seat," and from his point of view, "it looked like [Hansen] was either trying to kick stuff or get something from underneath the ... driver’s seat."

¶3 Another officer (Backup Officer) soon arrived. Officer and Backup Officer directed the car’s occupants to exit the car, one at a time, starting with Hansen, then Woman, then Passenger. The officers directed Hansen to walk backward toward them with his hands up. When Hansen reached the officers, Backup Officer detained him and gave him a "pat down." Without being asked, Hansen "informed [Backup Officer] that there was a gun under the seat of the car."

¶4 Officer "looked under the driver’s seat and initially ... saw a partially unzipped sunglass case which exposed what [he] believed to be methamphetamine and narcotic baggies." When he "slid aside the sunglass case," he saw a handgun.

¶5 Backup Officer informed Hansen of his Miranda² rights, specifically his right to remain silent, but Hansen continued talking. Backup Officer testified that Hansen said "he was the only one that possessed [the gun], touched it, nobody else had—basically had access to it." He told Officer that when Officer "pulled up behind [him,] he panicked and placed the gun and the ... sunglass container ... underneath the driver’s seat." Hansen acknowledged "that he was a meth user" and that the sunglass case contained narcotics, but he claimed the case belonged to a friend who had been in the backseat just before Hansen was stopped by the police. The State charged Hansen with, among other things, possession of a controlled substance, possession of a firearm while being a restricted person, and possession of paraphernalia.

¶6 At trial, Hansen testified in his own defense. Hansen said after he was pulled over, he reached down toward the driver side floorboard because he dropped his car keys when Woman tried to wrest them from him. He said that was "[t]he only thing [he could] think of that [he would] be reaching for or doing anything like that," though Officer testified that when he looked on the floor of the vehicle, he did not see any keys. Hansen said he did not tell either of the officers that he used methamphetamine and claimed he had "no idea about any drugs in [his] car."

¶7 During cross-examination, Hansen testified that he presently did not use methamphetamine, at which point the prosecutor asked, "So you’ve never been convicted of or pled guilty to possession of methamphetamine?" Hansen replied, "I have, but I don’t." The prosecutor followed up with questions about how many times Hansen "pled guilty of [possession of] methamphetamine," to which Hansen responded, "A few," and then clarified, "Five, I think."

¶8 At that point, Hansen’s trial counsel moved for a mistrial, arguing that it was improper for the jury to hear information about possession charges related "to events that occurred after these events." The State argued this questioning was intended to impeach Hansen’s testimony that he presently did not use methamphetamine. The district court determined Hansen "open[ed] the door when he said that he wasn’t a methamphetamine user" and denied the motion for mistrial. The court also said it would not give a curative instruction because the instruction would be "inappropriate where [Hansen] raised the issue." Hansen then offered clarifying testimony that his convictions and guilty pleas were "recent[ ]" and that he had no "convictions for methamphetamine" at the time of arrest in the present case. His counsel later reiterated her concerns about this line of questioning and again asked for a mistrial. The district court once again determined Hansen "opened the door" and stated Hansen’s additional testimony gave "context and clarification." Hansen’s trial counsel did not request analysis under rule 403 of the Utah Rules of Evidence or suggest that the questions about his convictions were offered to attack his character for truthfulness. Despite its prior decision not to do so, the court instructed the jury that the evidence of Hansen’s prior convictions "was brought to [the jury’s] attention only to help [it] evaluate the credibility of the defendant as a witness."

¶9 The jury convicted Hansen on one count of possession of a controlled substance, one count of possession of a firearm by a restricted person, and one count of possession of drug paraphernalia. He appeals.

ISSUES AND STANDARD OF REVIEW

¶10 Hansen raises two issues on appeal. First, he claims the district court erred when it did not intervene to exclude evidence of his prior methamphetamine-possession convictions. Because this issue is unpreserved,³ Hansen argues it should be reviewed for plain error. Second, Hansen alleges the district court plainly erred in submitting the case to the jury because there was insufficient evidence to convict him of possession of methamphetamine and possession of drug paraphernalia while being in possession of a firearm. "The plain error standard of review requires an appellant to show the existence of a harmful error that should have been obvious to the district court." State v. Robinson , 2018 UT App 103, ¶ 20, 427 P.3d 474 (quotation simplified).

ANALYSIS

I. Admission of Prior Convictions for Impeachment

¶11 Hansen argues the district court plainly erred by not intervening when the State asked him about his prior convictions after he testified that he presently did not use methamphetamine. Hansen claims the State’s questions about his prior convictions violated rules 608, 609, and 403 of the Utah Rules of Evidence. Hansen has a "high burden" to meet here because he "must demonstrate that (i) an error exists; (ii) the error should have been obvious to the [district] court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." State v. Bond , 2015 UT 88, ¶ 36, 361 P.3d 104 (quotation simplified). Hansen fails on this claim because he is unable to show that an error on the part of the district court exists, let alone an error that should have been obvious.

¶12 Rules 608 and 609 of the Utah Rules of Evidence govern what evidence may be introduced to attack a witness’s character for truthfulness or untruthfulness. Robinson v. Taylor , 2015 UT 69, ¶ 14, 356 P.3d 1230. But "[t]hese rules are mutually exclusive: [w]hen specific instances of conduct are the subject of a conviction, they are governed exclusively by rule 609. And if the specific acts do not involve a conviction, they are governed by rule 608." Id. ¶ 16. Thus, as a threshold matter, rule 608 is inapplicable here because evidence the State presented involved convictions, a category that does not fall under the purview of rule 608.

¶13 " Rule 609 permits a party to attack a witness’s character for truthfulness using evidence of a criminal conviction." State v. Alzaga , 2015 UT App 133, ¶ 32, 352 P.3d 107. But we agree with the State that Hansen’s prior convictions were not used to show his character for truthfulness ; rather, they were introduced only to cast doubt on the credibility of Hansen’s testimony that he presently did not use methamphetamine and that he did not know there was methamphetamine in his car. Rule 609 is arguably inapplicable to this situation.

¶14 "Once the defendant offers evidence or makes an assertion as to any fact, the State may cross-examine or introduce on rebuttal any testimony or evidence which would tend to contradict, explain[,] or cast doubt upon the credibility of [his testimony]." State v. Corona , 2018 UT App 154, ¶ 23, 436 P.3d 174 (quotation simplified). The State arguably did that here. Hansen, on direct examination, claimed he "had no idea about any drugs in [his] car" and denied telling Officer he used methamphetamine. On cross-examination, the State asked him whether he uses methamphetamine, which Hansen denied, then asked whether he had "been convicted of or pled guilty to possession of methamphetamine" and followed up by asking how many times Hansen had pled guilty to the crime. The State’s questioning about Hansen’s use of methamphetamine was not so obviously objectionable that the district court plainly erred in failing to intervene to stop the line of...